Food Objectives Corp.

National Labor Relations Board - Board Decisions

Apr 13, 1998

325 N.L.R.B. 650 (N.L.R.B. 1998)

650
325 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Food Objectives Corp. a/k/a All Pro Vending and
International Union, United Automobile Aero-
space & Agricultural Implement Workers of
America–UAW. Case 2–CA–29891
April 13, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
Upon a charge filed by International Union, United
Automobile Aerospace & Agricultural Implement
Workers of America–UAW (the Union), on November
25, 1996, the General Counsel of the National Labor
Relations Board issued a complaint on July 28, 1997,
against Food Objectives Corp. a/k/a All Pro Vending
(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 Respondent failed to file an answer.
On September 22, 1997, the General Counsel filed
a Motion for Summary Judgment with the Board. On
September 25, 1997, the Board issued an order trans-
ferring 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 of
the motion are undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on the 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 by letter dated August 12, 1997, counsel for
the General Counsel notified the Respondent that un-
less an answer was received by August 26, 1997, a
motion for summary judgment would be filed. Never-
theless, the Respondent has failed to file an answer.
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.
Accordingly, based on the entire record, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a
corporation with an office and place of business at 1
Oak Road, Fairfield, New Jersey, that operates a food
service and vending business, including providing cafe-
teria and vending machine services, at the General Mo-
tors North Tarrytown, New York facility. In the 12-
month period preceding the issuance of the complaint,
the Respondent, in conducting its business operation,
derived gross revenue in excess of $500,000 and per-
formed services valued in excess of $50,000 for enter-
prises directly engaged in interstate commerce, includ-
ing, but not limited to, the General Motors Corpora-
tion. We find that the Respondent is an employer en-
gaged 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
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
All employees of the Respondent, excluding con-
fidential employees, managers, assistant managers,
supervisors, bookkeepers, office employees, pro-
fessional employees, foremen and all other super-
visory employees with the authority to hire, pro-
mote, discharge, discipline or effectively rec-
ommend such action.
At all material times, the Union has been the des-
ignated exclusive collective-bargaining representative
of the employees in the unit and has been recognized
as the representative by the Respondent. This recogni-
tion has been embodied in an agreement between the
parties to comply with the terms and conditions of a
1995–1998 collective-bargaining agreement between
the Union and Service Dynamics Corporation, the Re-
spondent’s predecessor.
On or about August 1, 1996, the Respondent termi-
nated all business operations at the North Tarrytown
facility without prior notice to the Union and without
offering it an opportunity to bargain with the Respond-
ent with respect to the effects of this conduct. By letter
of August 7, 1996, the Union requested certain infor-
mation from the Respondent relating to terms and con-
ditions of employment of unit employees. The re-
quested information is relevant to and necessary for the
Union’s performance of its duties as the exclusive col-
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651ALL PRO VENDING
lective-bargaining representative of the unit employees.
Since on or about August 7, 1996, the Respondent has
failed and refused to furnish the Union with the infor-
mation requested.
On or about August 8, 1996, the Union, by letter,
requested that the Respondent bargain collectively and
in good faith about the effects of the closure of the Re-
spondent’s operations at the North Tarrytown facility.
Since about August 8, 1996, the Respondent has failed
and refused to bargain collectively about this subject,
which relates to the wages, hours, and other terms and
conditions of employment of the unit employees and is
a mandatory subject of bargaining.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively with the exclusive collective-bargaining rep-
resentative of its employees within the meaning of
Section 8(d), 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
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 has violated
Section 8(a)(5) and (1) by failing to bargain with the
Union, we shall order the Respondent, on request, to
bargain with the Union about the effects of its decision
to close its North Tarrytown operations. In addition,
we shall accompany our bargaining order with a lim-
ited backpay requirement in the manner set forth in
Transmarine Navigation Corp., 170 NLRB 389 (1968).
Backpay shall be computed 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 shall also order the Respond-
ent to provide the Union with the information it re-
quested.
In view of the fact that the Respondent’s operations
at North Tarrytown have closed, we shall order the Re-
spondent to mail copies of the attached notice to the
Union and to the last known addresses of its former
employees in order to inform them of the outcome of
this proceeding.
ORDER
The National Labor Relation Board orders that the
Respondent, Food Objectives Corp. a/k/a All Pro
Vending, Fairfield, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
International Union, United Automobile Aerospace &
Agricultural Implement Workers of America-UAW as
the exclusive representative of the employees in the
bargaining unit set forth below, by refusing to bargain
about the effects of its decision to close its North
Tarrytown, New York operations and by refusing to
provide information necessary for and relevant to bar-
gaining.
All employees of the Respondent, excluding con-
fidential employees, managers, assistant managers,
supervisors, bookkeepers, office employees, pro-
fessional employees, foremen and all other super-
visory employees with the authority to hire, pro-
mote, discharge, discipline or effectively rec-
ommend such action.
(b) 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) On request, bargain with the Union about the ef-
fects on the unit employees of its decision to close its
North Tarrytown, New York operations and reduce to
writing any agreement reached as a result of such bar-
gaining.
(b) Pay the former employees in the unit described
above their normal wages when last in the Respond-
ent’s employ from 5 days after the date of this deci-
sion until the occurrence of the earliest of the follow-
ing conditions: (1) the date the Respondent bargains to
agreement with the Union on those subjects pertaining
to the effects of its decision to close its North
Tarrytown, New York operations; (2) the date a bona
fide impasse in bargaining occurs; (3) the failure of the
Union to request bargaining within 5 days of this deci-
sion, or to commence negotiations within 5 days of the
Respondent’s notice of its desire to bargain with the
Union; (4) the subsequent failure of the Union to bar-
gain in good faith; but in no event shall the sum paid
to these employees exceed the amount they would
have earned as wages from the date on which the Re-
spondent terminated its operation, to the time they se-
cured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner; provided, how-
ever, that in no event shall this sum be less than these
employees would have earned for a 2-week period at
the rate of their normal wages when last in the Re-
spondent’s employ. Backpay shall be based on earn-
ings which the terminated employees would normally
have received during the applicable period, less any
net interim earrings, and shall be computed as set forth
in the remedy portion of this decision.
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652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.’’
(c) Provide the Union in a timely fashion the infor-
mation requested by the Union in its letter dated Au-
gust 7, 1996.
(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 under this Order.
(e) Within 14 days after service by the Region, mail
signed and dated copies of the attached notice marked
‘‘Appendix,’’1 to the Union and all unit employees.
Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be mailed
immediately upon receipt by the Respondent to the last
known address of each employee.
(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.
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 fail or refuse to bargain in good faith
with International Union, United Automobile Aero-
space & Implement Workers of America–UAW as the
exclusive bargaining representative of the employees in
the unit set forth below by refusing to bargain about
the effects of our decision to close our North
Tarrytown, New York operations:
All employees, excluding confidential employees,
managers, assistant managers, supervisors, book-
keepers, office employees, professional employ-
ees, foremen and all other supervisory employees
with the authority to hire, promote, discharge, dis-
cipline or effectively recommend such action.
WE WILL NOT refuse to provide the Union with re-
quested information necessary for and relevant to col-
lective bargaining.
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, on request, bargain with the Union about
the effects on the unit employees of our decision to
close our North Tarrytown operations and reduce to
writing any agreement reached as a result of such bar-
gaining.
WE WILL provide the Union in a timely fashion the
information requested by the Union in its letter dated
August 7, 1996.
WE WILL pay the former employees in the unit de-
scribed above their normal wages, with interest, for the
period set forth in the decision of the National Labor
Relations Board.
FOOD OBJECTIVES CORP. A/K/A ALL
PRO VENDING
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