Center State Beef & Veal Co.

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1246 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
Center State Beef and Veal Co., Inc. and Teamsters
Local 317, affiliated with the International
Brotherhood of Teamsters. Cases 3–CA–21521,
3–CA–21582, 3–CA–21636, and 3–CA–21702
March 31, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
Upon charges and amended charges filed by the Union
on September 15, October 16, and November 23, 1998,
and January 8, 1999, the General Counsel of the National
Labor Relations Board issued a consolidated complaint
on November 25, 1998, an amended consolidated com-
plaint on December 8, 1998, and a second amended con-
solidated complaint on January 27, 1999, against Center
State Beef and Veal Co., Inc., the Respondent, alleging
that it has violated Section 8(1), (3), and (5) of the Na-
tional Labor Relations Act. Subsequently, on January
11, 1999, the Respondent filed an answer to the consoli-
dated complaint. On February 11, 1999, however, the
Respondent withdrew its answer to the consolidated
complaint. Further, the Respondent did not file an an-
swer to either the amended consolidated complaint or the
second amended consolidated complaint.
On February 26, 1999, the General Counsel filed a
Motion for Summary Judgment with the Board. On
March 2, 1999, 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 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
Sections 102.20 and 102.21 of the Boards 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, unless good cause
is shown. In addition, the consolidated complaint, the
amended consolidated complaint, and the second
amended consolidated complaint all affirmatively note
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted.
In addition, the undisputed allegations in the Motion
for Summary Judgment disclose that the Region, by let-
ters dated January 5 and 6, 1999, notified the Respondent
that unless an answer to the amended consolidated com-
plaint were received by January 12, 1999, a Motion for
Summary Judgment would be filed. The Motion for
Summary Judgment also states without contradiction that
the Region, by letter dated February 3, 1999, confirmed
its telephone conversation with the Respondent in which
the Respondent asserted that it would not file further
answers in this proceeding and would not appear at the
hearing scheduled for February 16, 1999. Finally, by
letter to the Region dated February 11, 1999, the Re-
spondent withdrew its answer to the consolidated com-
plaint, and stated that it was “aware that a summary
judgement [sic] may be attached.”
Such a withdrawal of an answer has the same effect as
a failure to file an answer, i.e., the allegations in the
complaint must be considered to be admitted to be true.1
Accordingly, based on the withdrawal of the Respon-
dent’s answer to the consolidated complaint, and in the
absence of good cause being shown for the failure to file
a timely answer to the amended consolidated complaint
and the second amended consolidated complaint, we
grant the General Counsels Motion for Summary Judg-
ment insofar as the second amended consolidated com-
plaint (complaint) alleges that the Respondent violated
Section 8(a)(1) and (3) of the Act.
The complaint, however, further alleges in conclusion-
ary terms that the Respondent’s unfair labor practices are
“so serious and substantial in character that the possibil-
ity of erasing the effects of these unfair labor practices
and of conducting a fair rerun election by the use of tra-
ditional remedies is slight,” and that therefore a bargain-
ing order is warranted under NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969).
Although we agree that the violations of Section
8(a)(1) and (3) here are serious in nature, the complaint
does not allege sufficient facts to enable the Board to
evaluate the pervasiveness of the violations. For exam-
ple, the complaint does not allege the size of the unit or
the extent of dissemination, if any, of the violations
among the employees not directly affected by them. Ac-
cordingly, consistent with prior Board decisions, we
deny the General Counsel’s Motion for Summary Judg-
ment insofar as it alleges that a bargaining order is ap-
propriate and that the Respondent therefore violated Sec-
tion 8(a)(5) and (1) of the Act by failing to recognize and
bargain with the Union, including bargaining over the
effects on its employees of its decision to close its facil-
ity in Cortland, New York.2 We shall remand the case

1 See Maislin Transport, 274 NLRB 529 (1985).
2 See, e.g., Imperial Floral Distributors, 319 NLRB 147 (1995); FJN
Mfg., 305 NLRB 656 (1991); Bravo Mechanical, 300 NLRB 1019
(1990); Control & Electrical System Specialists, 299 NLRB 642
(1990); Binney’s Casting Co., 285 NLRB 1095 (1987); Michigan Ex-
pediting Service, 282 NLRB 210 (1986); and Power Jet Cleaning, Inc.,
270 NLRB 975 (1984). We therefore also deny the General Counsel’s
request for a make-whole order under Transmarine Navigation Corp.,
170 NLRB 389 (1968), as a remedy for the Respondent’s alleged
8(a)(5) failure to bargain with the Union over the effects of the closure
of its Cortland facility. In the absence of an answer, however, we find
the various factual allegations underlying the alleged 8(a)(5) violations
to be admitted. These allegations include the allegations that the bar-
gaining unit is appropriate, that a majority of the unit employees have
designated the Union as their bargaining representative, that the Union
requested the Respondent to recognize and bargain with it as the exclu-
sive representative of that unit, that the Respondent refused to do so,
327 NLRB No. 209
CENTER STATE BEEF & VEAL CO. 1247
for a hearing before an administrative law judge on the
issue of whether a bargaining order is an appropriate
remedy under the circumstances of this case.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Cortland, New
York, has been engaged in the slaughter and processing
of meat products. During the 12-month period preceding
issuance of the second amended consolidated complaint
(complaint), the Respondent, in conducting its business
operations described above, sold and shipped from its
Cortland, New York facility, meat products valued in
excess of $50,000 directly to points outside the State of
New York. We find that the 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
Between September 14, 1998 and October 5, 1998, the
exact dates being presently unknown, the Respondent, by
its vice president and agent Victor Broccoli at the Re-
spondent’s facility: (1) informed employees that if they
selected the Union as their collective-bargaining repre-
sentative, all employees would be paid the same; (2) told
employees that if they selected the Union as their collec-
tive-bargaining representative, current employees would
make the same wages as new employees, and urged em-
ployees to vote against the Union to prevent that occur-
rence; (3) offered an employee a wage raise if the em-
ployee voted against the Union; (4) threatened an em-
ployee that the Respondent’s facility would close if em-
ployees selected the Union as their collective-bargaining
representative; (5) promised employees a job and a raise
at a different facility if they voted against the Union; and
(6) threatened to have an employee arrested if he came
on the Respondent’s premises to vote in the representa-
tion election.
On about September 11, 1998, the Respondent dis-
charged employees Gerald Cobb, Jr. and Rodney Clark,
and permanently laid off employee Jon Horner. On
about October 5, 1998, the Respondent discharged em-
ployee Kenny Grewe. The Respondent discharged and
laid off the above employees because they formed,

and that the Respondent closed its facility without affording the Union
notice or an opportunity to bargain about the effects of the closing on
unit employees.
3 Nothing contained herein requires a hearing if, in the event of an
amendment to the complaint, the Respondent fails to answer thereby
admitting evidence that would permit the Board to resolve the bargain-
ing order issue. In such circumstances, the General Counsel may renew
the Motion for Summary Judgment with respect to the 8(a)(5) allega-
tions and remedies.
joined, or assisted the Union, and engaged in concerted
activities, and to discourage employees from engaging in
these activities.
CONCLUSIONS OF LAW
By the statements described above, the Respondent has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act,
in violation of Section 8(a)(1) of the Act. In addition, by
the discharges and layoff described above, the Respon-
dent has discriminated in regard to hire or tenure or terms
and conditions of employment of its employees, thereby
discouraging membership in a labor organization, in vio-
lation of Section 8(a)(1) and (3) of the Act. The Respon-
dent has thereby engaged in unfair labor practices affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain 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. Specifically, having
found that the Respondent has violated Section 8(a)(1)
and (3) of the Act by discharging Gerald Cobb, Jr., Rod-
ney Clark, and Kenny Grewe, and by permanently laying
off Jon Horner, we shall order the Respondent, in the
event it reopens its Cortland, New York facility, to offer
them full reinstatement to their former positions or, if
those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed. In addi-
tion, we shall order the Respondent to make them whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them by paying them
backpay from the time of their discharges and/or layoff
until the date the facility closed. Backpay shall be com-
puted in accordance with F.W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). We also shall
order the Respondent to remove from its files any refer-
ence to the unlawful discharges or permanent layoff of
employees Cobb, Clark, Grewe, and Horner, and to no-
tify these employees in writing that this has been done
and that those actions will not be used against them in
any way.
Further, inasmuch as the Respondent’s facility is now
closed, we shall order the Respondent to mail copies of
the notice to all unit employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Center State Beef and Veal Co., Inc., Cort-
land, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
(a) Telling employees that if they select Teamsters Lo-
cal 317, affiliated with the International Brotherhood of
Teamsters, as their collective-bargaining representative
that all employees would be paid the same, and current
employees would make the same wages as new employ-
ees.
(b) Offering employees a wage raise if they vote
against the Union.
(c) Threatening employees that the Respondent’s facil-
ity would close if they select the Union as their collec-
tive-bargaining representative.
(d) Promising employees jobs and raises at a different
facility if they vote against the Union.
(e) Threatening employees with arrest if they come on
the Respondent’s premises to vote in a representation
election.
(f) Discharging or permanently laying off employees
because they form, join, or assist the Union, or because
they engage in concerted activities.
(g) 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) Offer full reinstatement to employees Gerald Cobb
Jr., Rodney Clark, Kenny Grewe, and Jon Horner, in the
event that the Respondent reopens the Cortland, New
York facility, to their former jobs or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges previously enjoyed.
(b) Make employees Cobb, Clark, Grewe, and Horner
whole for any loss of earnings and other benefits suffered
as a result of their unlawful discharges and layoff, in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges
and layoff of employees Cobb, Clark, Grewe, and
Horner, and within 3 days thereafter, notify them in writ-
ing that this has been done and that their discharges and
layoff will not be used against them in any way.
(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 payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”4 to all current

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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employees and former employees employed by the Re-
spondent at any time since September 11, 1998.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 3 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT tell you that if you select Teamsters
Local 317, affiliated with the International Brotherhood
of Teamsters, as your collective-bargaining representa-
tive that all employees would be paid the same, and cur-
rent employees would make the same wages as new em-
ployees.
WE WILL NOT offer you a wage raise if you vote
against the Union.
WE WILL NOT threaten you that our facility will
close if you select the Union as your collective-
bargaining representative.
WE WILL NOT promise you jobs and raises at a dif-
ferent facility if you vote against the Union.
WE WILL NOT threaten you with arrest if you come
on our premises to vote in a representation election.
WE WILL NOT discharge you or permanently lay you
off because you form, join, or assist the Union, or be-
cause you engage in concerted activities.
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, in the event that we reopen the Cortland,
New York facility, offer employees Gerald Cobb Jr.,
Rodney Clark, Kenny Grewe, and Jon Horner full rein-
statement to their former jobs or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges previously enjoyed.
WE WILL make employees Cobb, Clark, Grewe, and
Horner whole for any loss of earnings and other benefits
suffered as a result of their unlawful discharges and lay-
off, with interest.

CENTER STATE BEEF & VEAL CO. 1249
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charges and layoff of employees Cobb, Clark, Grewe,
and Horner, and within 3 days thereafter, WE WILL no-
tify them in writing that this has been done and that their
discharges and layoff will not be used against them in
any way.
CENTER STATE BEEF AND VEAL CO.
INC.