Compass Group North America

National Labor Relations Board - Board Decisions

Nov 19, 2009

354 NLRB No. 106 (N.L.R.B. 2009)

354 NLRB No. 106
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.
Compass Group North America and its subsidiaries
Morrison Management Specialists and Morrison
Senior Dining and American Federation of
State, County and Municipal Employees, AFL–
CIO, and its Local 2568. Case 7–CA–51876
November 19, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks default judgment in this
case pursuant to the terms of a settlement agreement.
Upon a charge filed by American Federation of State,
County and Municipal Employees, AFL–CIO, and its
Local 2568 (collectively the Union) on March 3, 2009,
the General Counsel issued the original complaint on
May 12, 2009, against Compass Group North America
and its subsidiaries Morrison Management Specialists
and Morrison Senior Dining (the Respondent), alleging
that it had violated Section 8(a)(5) and (1) of the Act.
Subsequently, the Respondent and the Union entered
into a settlement agreement, which was approved by the
Regional Director for Region 7 on June 12, 2009.
Among other things, the settlement agreement required
the Respondent to (1) furnish the Union with the infor-
mation it requested; (2) remit to the Union all dues and
initiation fees that it had deducted from the paychecks of
the unit employees, totaling $8,406.85, plus $100 in in-
terest; and (3) post a notice to employees regarding the
complaint allegations.
The settlement agreement also contained the following
provision:
The Charged Party agrees that in case of noncompli-
ance with any of the terms of this settlement agreement
by the Charged Party, and after 14 days notice from the
Regional Director of the National Labor Relations
Board of such noncompliance without remedy by the
Charged Party, the Regional Director may reissue the
complaint in this matter. The General Counsel may
then file a motion for default judgment with the Board
on the allegations of the complaint. The Charged Party
understands and agrees that the allegations of the reis-
sued complaint may be deemed to be true by the Board
and its answer to such complaint shall be considered
withdrawn. The Charged Party also waives the follow-
ing: (a) filing of answer; (b) hearing; (c) administrative
law judge’s decisions; (d) filing of exceptions and
briefs; (e) oral argument before the Board; (f) the mak-
ing of findings of fact and conclusions of law by the
Board; and (g) all other proceedings to which a party
may be entitled under the Act or the Board’s Rules and
Regulations. On receipt of said motion for default
judgment, the Board shall issue an order requiring the
Charged Party to show cause why said motion of the
General Counsel should not be granted. The Board
may then, without necessity of trial or any other pro-
ceeding, find all allegations of the complaint to be true
and make findings of fact and conclusions of law con-
sistent with those allegations adverse to the Charged
Party, on all issues raised by the pleadings. The Board
may then issue an order providing a full remedy for the
violations found as is customary to remedy such viola-
tions. The parties further agree that the Board’s order
and U.S. Court of Appeals judgment may be entered
thereon ex parte.
By letter dated July 6, 2009, the compliance officer for
Region 7 advised the Respondent that the Region had not
yet received $100 in dues and fees that remained to be
paid to the Union or information demonstrating that the
Respondent had posted the required notice to employees.
In this letter, the compliance officer also noted the Un-
ion’s allegations that the Respondent was not in compli-
ance with the settlement agreement provisions concern-
ing dues withholding and furnishing the Union with re-
quested information, requesting the Respondent’s re-
sponse to these allegations by July 17, 2009. By letter
dated July 24, 2009, the Regional Director for Region 7
again reminded the Respondent of its obligations to (1)
post signed and dated copies of the notice and inform the
Region when and where they were posted; (2) remit $100
in interest to Region 7; and (3) furnish the Union with
the requested information. In this letter, the Regional
Director also warned the Respondent that its failure to
comply within 14 days will result in the Regional Direc-
tor setting aside the settlement agreement, reissuing the
complaint, and filing a motion for default judgment. The
Respondent failed to comply. Accordingly, pursuant to
the terms of the noncompliance provisions of the settle-
ment agreement, the Regional Director issued an Order
Setting Aside Settlement Agreement on September 4,
2009 and reissued the complaint on September 8, 2009.
On September 18, 2009, the General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on September 24, 2009, 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Ruling on Motion for Default Judgment1
According to the uncontroverted allegations in the Mo-
tion for Default Judgment, the Respondent has failed to
comply with the terms of the settlement agreement by
failing to furnish the Union with requested information,
pay the agreed-upon interest payment, and post an ap-
propriate notice. Consequently, pursuant to the noncom-
pliance provisions of the settlement agreement set forth
above, we find that all of the allegations in the reissued
complaint are true.2 Accordingly, we grant the General
Counsel’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 corporation,
with headquarters in Charlotte, North Carolina, and
places of business in Dearborn, Michigan (the Oakwood
Commons facilities), has been engaged in the provision
of food, nutrition, and dining services to healthcare and
senior living communities.
During calendar year 2008, a representative period, the
Respondent, in conducting its business operations de-
scribed above, purchased and received at the Oakwood
Commons facilities goods valued in excess of $50,000
from other enterprises located within the State of Michi-
gan, each of which other enterprises had received those
goods directly from points outside the State of Michigan.
During calendar year 2008, the Respondent, in con-
ducting its business operations described above, derived
gross revenues in excess of $500,000.
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.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S.
September 11, 2009) (No. 09-328); New Process Steel v. NLRB, 564
F.3d 840 (7th Cir. 2009), cert. granted __ S.Ct. __ , 2009 WL 1468482
(U.S. Nov. 2, 2009); Northeastern Land Services v. NLRB, 560 F.3d 36
(1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. August
18, 2009) (No. 09-213). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for cert.
filed, __U.S.L.W.__ (U.S. September 29, 2009) (No. 09-377).
2 See U-Bee, Ltd., 315 NLRB 667 (1994).
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their names and have
been supervisors of the Respondent within the meaning
of Section 2(11) of the Act and agents of the Respondent
within the meaning of Section 2(13) of the Act:
Bill Breslin Senior Labor Relations Director
Steve Berry Director, Oakwood Commons
W. Forrest Coley, Jr. Director Employee Transitions
Kevin McLaughlin Operations Manager until about
March 2009
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All full-time and part-time service and maintenance
employees of the Respondent, whose work relates to
the food service contract between Respondent and
Oakwood Healthcare Promotion, Inc. (OHP), em-
ployed at the Oakwood Common Retirement Commu-
nity and Oakwood Rehabilitation and Skilled Nursing
Center, located at 16351 and 16391 Rotunda Drive,
Dearborn, Michigan, including cooks, cook/team lead-
ers, food service assistants, hostesses, and servers, or
any Respondent classifications which perform work
similar to these OHP job classifications; but excluding
employees of OHP who are also members of AFSCME
Local 2568, business office clerical employees, profes-
sional and technical employees, RNs, LPNs, and
guards and supervisors as defined in the Act.
For many years until about June 30, 2008, the Union
was the exclusive collective-bargaining representative of
the unit employed by OHP. OHP’s recognition of the
Union as such representative was embodied in successive
collective-bargaining agreements, the most recent of
which was effective January 1, 2006 through December
31, 2008.
About July 1, 2008, OHP laid off, and the Respondent
hired, the employees of the unit, who continued to pro-
vide food and maintenance services at the Oakwood
Commons facilities.
Since about July 1, 2008, the Union has been the des-
ignated exclusive collective-bargaining representative of
the unit, and the Respondent has recognized the Union as
such representative. This recognition is embodied in a
collective-bargaining agreement between the Respondent
and the Union, effective July 1 through December 31,
2008, and, by agreement of the parties, extended day to
day thereafter.
COMPASS GROUP NORTH AMERICA 3
Until about July 1, 2008, based on Section 9(a) of the
Act, the Union was the exclusive collective-bargaining
representative of the unit employed by OHP.
At all times since July 1, 2008, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the Respondent’s employees
in the unit.
The collective-bargaining agreement between the Re-
spondent and the Union referred to above contains, inter
alia, a checkoff provision at Section 3.1, requiring the
Respondent to remit the union dues and initiation fees it
has deducted from the pay of unit employees to the fi-
nancial secretary of the Union, by the 30th day of the
month in which the deductions are made.
Since about September 17, 2008, the Union, by Local
2568 president Cindy Spurlock, has requested in writing
that the Respondent furnish it with payroll records for all
unit employees reflecting paycheck deductions for health
insurance and union dues.
Since about November 12, 2008, the Union, by Local
2568 president Cindy Spurlock, has requested in writing
that the Respondent furnish it with payroll records for all
unit employees for the period July 1 to November 12,
2008.
The information requested by the Union, described
above, is necessary for, and relevant to, the performance
of its duties as the exclusive collective-bargaining repre-
sentative of the unit.
Since about September 17 and November 12, 2008, re-
spectively, the Respondent has failed and refused to fur-
nish the Union’s requested information described above.
Since about July 1, 2008, the Respondent has deducted
Union dues from the paychecks of certain unit employ-
ees, but has failed and refused to remit any of such mon-
eys to the Union.
The Respondent’s failure and refusal to remit deducted
dues to the Union relates to wages, hours, and other
terms and conditions of employment of the unit and is a
mandatory subject for the purposes of collective bargain-
ing.
The Respondent has failed and refused to remit de-
ducted dues to the Union without prior notice to the Un-
ion, without affording the Union an opportunity to bar-
gain with respect to such conduct and the effects of such
conduct, and without the Union’s consent.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the Union as the exclusive collective-
bargaining representative of its employees within the
meaning of Section 8(d) of the Act, in violation of Sec-
tion 8(a)(5) and (1) of the Act. The Respondent’s unfair
labor practices affect 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)(5)
and (1) by failing and refusing to provide information to
the Union that is necessary and relevant to the Union’s
performance of its duties as the exclusive collective-
bargaining representative of the unit employees, we shall
order the Respondent to furnish the Union with the in-
formation that it requested on September 17 and Novem-
ber 12, 2008. Further, having found that the Respondent
violated Section 8(a)(5) and (1) by failing to remit dues
to the Union that it deducted from unit employees’ pay-
checks, we shall order the Respondent to make the pay-
ments described below. In this regard, the Respondent
agreed in the settlement agreement that it would pay the
Union a total of $8506.85, which included $8406.85 in
unremitted dues plus interest in the amount of $100. The
General Counsel’s motion states that there is an out-
standing balance in the amount of $100. Accordingly,
we shall order the Respondent to remit this amount to the
Region for payment to the Union.
We find, however, that the payments owed to the Un-
ion should not be limited to this amount. As set forth
above, the settlement agreement provided that, in the
event of noncompliance, the Board could issue an Order
“providing a full remedy for the violations found as is
customary to remedy such violations.” Thus, under this
language, it is appropriate to provide the “customary”
remedy3 of requiring the Respondent to pay the amount
of any further unremitted dues and initiation fees to the
Union, with interest thereon to be computed in the man-
ner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).4 However, because we shall order
the Respondent to pay the liquidated remedy specified in
the settlement agreement, minus the amounts already
paid, the applicable payment period for any further
amounts due will commence on June 12, 2009, the day
the Regional Director approved the settlement agree-
ment. We find it necessary to impose this limitation to
prevent an unintended double recovery for the period

3 See L.J. Logistics, Inc., 339 NLRB 729, 730–731 (2003).
4 In the complaint, the General Counsel seeks compound interest
computed on a quarterly basis for any monetary awards. Having duly
considered the matter, we are not prepared at this time to deviate from
our current practice of assessing simple interest. See, e.g., Glen Rock
Ham, 352 NLRB 516, 516 fn. 1 (2008), citing Rogers Corp., 344
NLRB 504 (2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
running from the date that the Respondent failed to remit
dues to the effective date of the settlement agreement.
ORDER
The National Labor Relations Board orders that the
Respondent, Compass Group North America and its sub-
sidiaries Morrison Management Specialists and Morrison
Senior Dining, Charlotte, North Carolina and Dearborn,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to furnish American Federation
of State, County and Municipal Employees, AFL–CIO,
and its Local 2568 (collectively the Union) with requested
information that is necessary for and relevant to the Un-
ion’s performance of its duties as the exclusive collective-
bargaining representative of the unit employees.
(b) Failing and refusing to remit to the Union the dues
deducted from the paychecks of unit employees as re-
quired by section 3.1 of the collective-bargaining agree-
ment.
(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 to the Union in a timely manner the infor-
mation requested by the Union on September 17 and
November 12, 2008.
(b) Remit to Region 7 the payment of $100 to be dis-
bursed in accordance with the June 12, 2009 settlement
agreement, and remit to the Union any dues deducted
since June 12, 2009 from the paychecks of unit employ-
ees pursuant to section 3.1 of the collective-bargaining
agreement that have not been remitted, with interest, in
the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days after service by the Region, post at
its facilities in Charlotte, North Carolina, and Dearborn,
Michigan, copies of the attached notice marked “Appen-
dix.”5 Copies of the notice, on forms provided by the
Regional Director for Region 7, 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

5 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.”
notices are not altered, 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 facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since July 1, 2008.
(d) 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. November 19, 2009
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Peter C. Schaumber, Member
(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
violated 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 furnish American Fed-
eration of State, County and Municipal Employees, AFL–
CIO, and its Local 2568 (collectively the Union) with re-
quested information that is necessary for and relevant to
the Union’s performance of its duties as the exclusive col-
lective-bargaining representative of the unit employees.
WE WILL NOT fail and refuse to remit to the Union the
dues deducted from the paychecks of unit employees as
required by section 3.1 of the collective-bargaining
agreement.
COMPASS GROUP NORTH AMERICA 5
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 to the Union in a timely manner the
information requested by the Union on September 17 and
November 12, 2008.
WE WILL remit to Region 7 the payment of $100 to be
disbursed in accordance with the June 12, 2009 settle-
ment agreement, and WE WILL remit to the Union any
dues deducted since June 12, 2009, from the paychecks
of unit employees pursuant to Section 3.1 of the collec-
tive-bargaining agreement that have not been remitted,
with interest.
COMPASS GROUP NORTH AMERICA AND ITS
SUBSIDIARIES MORRISON MANAGEMENT
SPECIALISTS AND MORRISON SENIOR DINING