Clark Food Service

National Labor Relations Board - Board Decisions

Dec 20, 2007

351 N.L.R.B. 71 (N.L.R.B. 2007)

351 NLRB No. 71
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Victoria’s Fine Foods and Catering, Inc. d/b/a Clark
Food Service a/k/a Clark Food Service Man-
agement and International Union, United Auto-
mobile Aerospace and Agricultural Implement
Workers, Local 435. Case 4–CA–35127
December 20, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Based on a charge and an
amended charge filed by the Union on January 17 and
April 25, 2007, respectively, the General Counsel issued
a complaint on August 28, 2007, against Victoria’s Fine
Foods and Catering, Inc. d/b/a Clark Food Service a/k/a
Clark Food Service Management, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of the Act.
The Respondent failed to file an answer.
On October 1, 2007, the General Counsel filed a Mo-
tion for Default Judgment with the Board. Thereafter, on
October 11, 2007, 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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides 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 complaint affirmatively stated
that unless an answer was received by September 11,
2007, all the allegations in the complaint could be con-
sidered admitted as true. Further, the undisputed allega-
tions in the General Counsel’s motion disclose that the
Region, by letter dated September 12, 2007, notified the
Respondent that unless an answer was received by Sep-
tember 26, 2007, a motion for default judgment would be
filed.1

1 A copy of the complaint was mailed to the Respondent on August
28, 2007, by certified mail at the post office box address listed in the
unfair labor practice charge and used by the Respondent in its corre-
spondence to the Region prior to the issuance of the complaint. On
September 17, 2007, a copy of the complaint was sent by overnight
mail via FedEx to two other addresses used by the Respondent in the
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration, has been engaged in providing cafeteria ser-
vices at the General Motors assembly plant in Wilming-
ton, Delaware (the plant).
During the 12-month period preceding the issuance of
the complaint, in conducting its business operations, the
Respondent purchased and received at the plant goods
valued in excess of $50,000 directly from points outside
the State of Delaware.
Until about March 21, 2005, American Food and
Vending Service of Delaware, Inc. provided cafeteria
services at the Plant. From about March 22, 2005, until
late March 2007, the Respondent provided cafeteria ser-
vices at the Plant.
Since about March 22, 2005, the Respondent has been
engaged in substantially the same business previously
engaged in by American Food and Vending Service of
Delaware, Inc. at the Plant, and has employed, as a ma-
jority of its employees, individuals who were previously
employees of American Food and Vending Service of
Delaware, Inc.
Based on the operations described above, the Respon-
dent has continued to be the employing entity and is a
successor to American Food and Vending Service of
Delaware, Inc.
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 International Union, United
Automobile Aerospace and Agricultural Implement
Workers, Local 435, 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, Victoria Clark-Davis held the
position of president of the Respondent and has been a
supervisor of the Respondent within the meaning of Sec-
tion 2(11) of the Act, and an agent of the Respondent
within the meaning of Section 2(13) of the Act.

past. Results of FedEx’s “Track Shipments” service confirmed that the
complaint was delivered to those addresses. On September 21, 2007,
the copy of the complaint sent by certified mail to the Respondent’s
post office box address was returned marked “unclaimed.” It is well
settled that a respondent’s failure or refusal to accept certified mail or
to provide for appropriate service cannot serve to defeat the purposes of
the Act. See, e.g., I.C.E. Electric, Inc., 339 NLRB 247 fn. 2 (2003),
and cases cited therein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The following employees of the Respondent at the
Plant constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
Cafeteria employees at the Wilmington, Delaware plant
of the General Motors Corporation (Saturn Assembly
Division) excluding managers, assistant managers, su-
pervisory and office personnel, and vending service
and maintenance personnel.
The Union and American Food and Vending Service
of Delaware, Inc. were parties to a collective-bargaining
agreement (the agreement), effective by its terms from
January 17, 2000 through July 26, 2002, which automati-
cally renewed from year to year through July 26, 2006.
Pursuant to the agreement, American Food and Vending
Service of Delaware, Inc. recognized the Union as the
exclusive collective-bargaining representative of the unit.
On about March 21, 2005, the Respondent agreed to
operate under the terms of the existing contract on a tem-
porary basis and to open negotiations in the very near
future to negotiate a 3-year contract with the Union,
thereby continuing the terms and conditions of employ-
ment of the unit, including those contained in the agree-
ment.
At all material times since at least March 22, 2005, the
Union has been the designated exclusive collective-
bargaining representative of the unit and has been recog-
nized as the exclusive collective-bargaining representa-
tive of the unit by the Respondent.
At all material times, since at least March 22, 2005,
based on Section 9(a) of the Act, the Union has been the
exclusive collective-bargaining representative of the unit.
Article 16, section 5 of the agreement states as fol-
lows:
Effective July 27, 1999, employees who have com-
pleted six (6) months of service and are regularly
scheduled thirty (30) hours per week or more by
American Food and Vending shall also receive Life In-
surance in the amount of $15,000 and Accidental Death
& Dismemberment benefit (AD&D) in the amount of
$15,000.
On about January 11, 2007, unit employee Barbara
Childress died.
On about February 12, 2007, Clyde E. Childress re-
quested the $15,000 death benefit for his wife, the late
Barbara Childress, pursuant to article 16, section 5 of the
agreement.
Since about February 12, 2007, the Respondent has
failed and refused to provide the $15,000 death benefit as
required by article 16, section 5 of the agreement.
The subject set forth above relates to wages, hours, and
other terms and conditions of employment of the unit and
is a mandatory subject for the purpose of collective bar-
gaining.
The Respondent engaged in the conduct described
above, without prior notice to the Union and without
affording the Union an opportunity to bargain with the
Respondent with respect to this conduct.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees, and has thereby engaged 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.
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)(5)
and (1) by failing and refusing to honor the terms and
conditions of article 16, section 5 of the Respondent’s
collective-bargaining agreement with the Union by refus-
ing since February 12, 2007, to provide Clyde E. Chil-
dress with the requested $15,000 death benefit on behalf
of his wife, the late Barbara Childress, an employee of
the Respondent who died on January 11, 2007, we shall
order the Respondent to provide Clyde E. Childress with
the requested $15,000 death benefit, with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Victoria’s Fine Foods and Catering, Inc.
d/b/a Clark Food Service a/k/a Clark Food Service Man-
agement, Wilmington, Delaware, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to honor the terms and condi-
tions of article 16, section 5 of the Respondent’s collec-
tive-bargaining agreement with the International Union,
United Automobile Aerospace and Agricultural Imple-
ment Workers, Local 435 by refusing since February 12,
2007, to provide Clyde E. Childress with the requested
$15,000 death benefit on behalf of his wife, the late Bar-
CLARK FOOD SERVICE 3
bara Childress, an employee of the Respondent who died
on January 11, 2007.
(b) 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) Honor the terms and conditions of article 16, sec-
tion 5 of the Respondent’s collective-bargaining agree-
ment with the Union and provide Clyde E. Childress with
the requested $15,000 death benefit on behalf of his late
wife, Barbara Childress, with interest, as set forth in the
remedy section of this decision.
(b) Within 14 days after service by the Region, post at
the plant in Wilmington, Delaware, copies of the at-
tached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al-
tered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 12,
2007.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. December 20, 2007
Wilma B. Liebman, Member
Peter C. Schaumber, Member
Peter N. Kirsanow, Member

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 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.”
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to honor the terms and
conditions of Article 16, Section 5 of our collective-
bargaining agreement with the International Union,
United Automobile Aerospace and Agricultural Imple-
ment Workers, Local 435 by refusing to provide Clyde
E. Childress with the requested $15,000 death benefit on
behalf of his wife, the late Barbara Childress, an em-
ployee who died on January 11, 2007.
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 honor the terms and conditions of article 16,
section 5 of our collective-bargaining agreement with the
Union and provide Clyde E. Childress with the requested
$15,000 death benefit on behalf of his late wife, Barbara
Childress, with interest.
VICTORIA’S FINE FOODS AND CATERING, INC.
D/B/A CLARK FOOD SERVICE A/K/A CLARK
FOOD SERVICE MANAGEMENT

351 NLRB No. 71