Veterans Foreign Wars Club

National Labor Relations Board - Board Decisions

Feb 24, 1995

316 N.L.R.B. 492 (N.L.R.B. 1995)

492
316 NLRB No. 93
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Veterans Foreign Wars Club and Hotel, Motel,
Hospital, Restaurant Employees & Bartenders
Union Local 369, a/w Hotel Employees & Res-
taurant Employees International Union. Case
18–CA–13311
February 24, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
Upon a charge filed by the Union on October 5,
1994, the General Counsel of the National Labor Rela-
tions Board issued a complaint on December 7, 1994,
against Veterans Foreign Wars Club, the Respondent,
alleging that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act. Although properly
served copies of the charge and complaint, the Re-
spondent failed to file an answer.
On January 27, 1995, the General Counsel filed a
Motion for Summary Judgment with the Board. On
January 31, 1995, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent 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 January 10, 1995,
notified the Respondent that unless an answer were re-
ceived by January 18, 1995, 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
The Respondent, a Minnesota corporation with an
office and place of business in Albert Lea, Minnesota,
has been engaged in the operation of a social club and
the sale of food, drinks, and services to members and
their guests. At all material times, the On-Sale Liquor
Dealers of the City of Albert Lea, Minnesota (the As-
sociation) has been an organization composed of var-
ious employers engaged in the operation of private
membership clubs in the Albert Lea, Minnesota area,
one purpose of which is to represent its employer-
members in negotiating collective-bargaining agree-
ments with the Union. At all material times, the Re-
spondent has been an employer-member of the Asso-
ciation and has delegated the Association to represent
it in negotiating and administering collective-bargain-
ing agreements with the Union. During the year ending
December 31, 1993, the employer-members of the As-
sociation, in conducting their business operations, col-
lectively derived gross revenues in excess of $500,000
and collectively purchased and received at their Albert
Lea, Minnesota facilities goods valued in excess of
$5000 from enterprises located within the State of
Minnesota, each of which enterprises had received
these goods directly from points outside the State of
Minnesota. We find that the Respondent is an em-
ployer 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
Since on or about June 10, 1994, the Respondent
has interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by Section 7 of the
Act by engaging in the following acts and conduct. On
about June 10, 1994, the Respondent solicited employ-
ees as to whether they wished to discontinue paying
union dues by dues checkoff. In or about early Sep-
tember 1994, and on or about September 13, 1994, the
Respondent solicited employees to sign a petition to
have the Union decertified.
The following employees of the employer-members
of the Association constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time bartenders,
janitors, cooks, waiters/waitresses, and kitchen
helpers employed by members of the Association
at their Albert Lea, Minnesota facilities; excluding
office clerical employees, professional employees,
guards and supervisors, as defined in the Act.
At all material times, the Union has been the des-
ignated exclusive collective-bargaining representative
of the unit and has been recognized as such representa-
tive by the employer-members of the Association.
Such recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of
which is effective by its terms for the period June 1,
1994, to May 31, 1995.
493VETERANS FOREIGN WARS CLUB
1 The complaint does not affirmatively state that the use of volun-
teer bartenders to perform unit work is a mandatory subject or bar-
gaining or a unilateral change. We will leave resolution of this issue
to the compliance stage of the proceedings at which time we will
allow the Respondent to raise the issue. See Harabedian Paving Co.,
313 NLRB 1079, 1080 fn. 2 (1994).
At all material times, the Union, by virtue of Section
9(a) of the Act, has been the exclusive collective-bar-
gaining representative of the unit.
At all material times, the Union has requested the
Respondent, as part of the Association, to recognize it
as the exclusive collective-bargaining representative of
the unit and to bargain collectively, as part of the As-
sociation, with the Union as the exclusive collective-
bargaining representative of the unit.
Since on or about June 1, 1994, the Respondent has
failed and refused to recognize and bargain with the
Union as the exclusive collective-bargaining represent-
ative of the unit by engaging in the following acts and
conduct. On or about June 1, 1994, the Respondent
failed to pay its employees the wage rates agreed to
in the parties’ collective-bargaining agreement that ex-
pired on May 31, 1994. This subject relates to wages,
hours, and other terms and conditions of employment
of the unit and is a mandatory subject for the purposes
of collective bargaining. The Respondent engaged in
this conduct without prior notice to the Union and
without affording the Union an opportunity to bargain
with the Respondent with respect to this conduct.
Since about August 1994, the Respondent has utilized
volunteer bartenders to perform unit work. On or about
September 13, 1994, the Respondent bypassed the
Union and dealt directly with employees over their
terms and conditions of employment.
On or about September 22, 1994, the Union and the
Association reached agreement on terms and condi-
tions of employment of the unit to be incorporated in
a collective-bargaining agreement. Since about Septem-
ber 22, 1994, the Union has requested the Respondent
to execute the written contract containing this agree-
ment, but since about the same date, the Respondent
has failed and refused to do so.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has failed and refused to recognize and bar-
gain with the Union as the exclusive collective-bar-
gaining representative of the unit and has interfered
with, restrained, and coerced employees in the exercise
of the rights guaranteed by Section 7 of the Act, and
has thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.1
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. Specifi-
cally, having found that the Respondent violated Sec-
tion 8(a)(5) and (1) by unilaterally changing, since
about June 1, 1994, the wage rates for unit employees,
and by utilizing, since about August 1994, volunteer
bartenders to perform unit work, we shall order the
Respondent to make the unit employees whole for any
loss of earnings attributable to its unlawful conduct.
Backpay shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987). Furthermore, having found that the Respondent
has failed to execute the collective-bargaining agree-
ment reached on or about September 22, 1994, we
shall order it to do so, give retroactive effect to that
agreement, and make the unit employees whole for any
loss of pay or expenses incurred as a result of the Re-
spondent’s failure to execute and implement the writ-
ten agreement, in the manner prescribed in Ogle Pro-
tection Service, supra, and as set forth in Kraft Plumb-
ing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
mem. 661 F. 2d 940 (9th Cir. 1981), with interest on
such amounts to be computed as prescribed in New
Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Veterans Foreign Wars Club, Albert Lea,
Minnesota, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Soliciting employees as to whether they wished
to discontinue paying union dues by dues checkoff.
(b) Soliciting employees to sign a petition to have
Hotel, Motel, Hospital, Restaurant Employees & Bar-
tenders Union Local 369, a/w Hotel Employees & Res-
taurant Employees International Union decertified.
(c) Unilaterally changing the wage rates paid to the
unit employees. The unit includes the following em-
ployees:
All full-time and regular part-time bartenders,
janitors, cooks, waiters/waitresses, and kitchen
helpers employed by members of the Association
at their Albert Lea, Minnesota facilities; excluding
office clerical employees, professional employees,
guards and supervisors, as defined in the Act.
(d) Using volunteer bartenders to perform unit work
without affording the Union an opportunity to bargain.
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.’’
(e) Bypassing the Union and dealing directly with
unit employees over their terms and conditions of em-
ployment.
(f) Failing and refusing to execute the collective-bar-
gaining agreement between On-Sale Liquor Dealers of
the City of Albert Lea, Minnesota and the Union
reached on September 22, 1994.
(g) In any like or related manner interfering with,
restraining, 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) Make the unit employees whole for any loss of
earnings due to its unilateral change in unit employee
wage rates since June 1, 1994, and its use, since about
August 1994, of volunteer bartenders to perform unit
work, in the manner set forth in the remedy section of
this decision.
(b) Execute and implement the collective-bargaining
agreement between the Union and the Association
reached on or about September 22, 1994, give retro-
active effect to that agreement, and make the unit em-
ployees whole for any losses incurred as a result of the
Respondent’s failure to execute the agreement, in the
manner set forth in the remedy section of this decision.
(c) 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 amount of backpay
due under the terms of this Order.
(d) Post at its facility in Albert Lea, Minnesota, cop-
ies of the attached notice marked ‘‘Appendix.’’2 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 18, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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.
(e) 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.
WE WILL NOT solicit employees as to whether they
wished to discontinue paying union dues by dues
checkoff.
WE WILL NOT solicit employees to sign a petition to
decertify Hotel, Motel, Hospital, Restaurant Employees
& Bartenders Union Local 369, a/w Hotel Employees
& Restaurant Employees International Union.
WE WILL NOT unilaterally change the wage rates
paid to unit employees. The unit includes the following
employees:
All full-time and regular part-time bartenders,
janitors, cooks, waiters/waitresses, and kitchen
helpers employed by members of the On-Sale
Liquor Dealers of the City of Albert Lea, Min-
nesota at their Albert Lea, Minnesota facilities;
excluding office clerical employees, professional
employees, guards and supervisors, as defined in
the Act.
WE WILL NOT use volunteer bartenders to perform
unit work without affording the Union an opportunity
to bargain.
WE WILL NOT bypass the Union and deal directly
with unit employees over their terms and conditions of
employment.
WE WILL NOT fail or refuse to execute the collec-
tive-bargaining agreement between the Association and
the Union reached on September 22, 1994.
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 unit employees whole for any
loss of earnings due to our unilateral change in unit
employee wage rates since June 1, 1994, and our use,
since about August 1994, of volunteer bartenders to
perform unit work, in the manner set forth in the deci-
sion of the National Labor Relations Board.
WE WILL execute and implement the collective-bar-
gaining agreement between the Union and the Associa-
tion reached on or about September 22, 1994, give ret-
roactive effect to that agreement, and make our unit
employees whole for any losses incurred as a result of
our failure to execute the agreement, in the manner set
495VETERANS FOREIGN WARS CLUB
forth in the decision of the National Labor Relations
Board.
VETERANS FOREIGN WARS CLUB