Forest Hills Supermarket, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2008

353 N.L.R.B. 411 (N.L.R.B. 2008)

FOREST HILLS FAMILY FOODS
353 NLRB No. 37
411
Forest Hills Supermarket, Inc. d/b/a Forest Hills
Family Foods and United Food & Commercial
Workers Union Local 880. Case 8–CA–37666
September 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent failed to file an
answer to the complaint. Upon a charge filed by the Un-
ion on March 6, 2008, the General Counsel issued a
complaint on May 30, 2008, against Forest Hills Super-
market, Inc., d/b/a Forest Hills Family Foods (the Re-
spondent) alleging that it had violated Section 8(a)(5)
and (1) of the Act. The Respondent failed to file an an-
swer.
On July 3, 2008, the General Counsel filed a Motion
for Default Judgment with the Board. On July 8, 2008,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On July 21, 2008, the Respondent
filed a brief in opposition to the Board’s Notice to Show
Cause, a motion to file an answer to the complaint, and
an answer. On July 22, the General Counsel filed a re-
sponse in opposition to the Respondent’s motion to file
an answer. On July 23, 2008, the Union filed a brief in
support of the General Counsel’s motion.
Ruling on Motion for Default Judgment1
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 the
answer had to be received by the Regional Office on or
before June 13, 2008, or postmarked on or before June 12,
2008, and that, if no answer was filed, the Board may find,
pursuant to a motion for default judgment, that the allega-
tions in the complaint are true. Further, the undisputed
allegations in the General Counsel’s motion disclose that
the Region, by letter dated June 23, 2008, notified the Re-
spondent that, unless an answer was received by June 30,
2008, a motion for default judgment could be filed. The

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 Schaumber and Member Liebman 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.
Respondent neither filed an answer to the complaint nor
requested an extension of time to do so.
In its opposition to the Board’s Notice to Show Cause,
the Respondent states that, when the complaint was
served, the answer date was not docketed and the Re-
spondent failed to file a timely answer. The Respondent
further asserts that when the Regional Office wrote to the
Respondent extending the answer deadline to June 30,
2008, the answer date again was not docketed. In addi-
tion, counsel for the Respondent states that his wife was
hospitalized due to a stroke beginning June 28, 2008, and
that some matters, including the answer to the complaint,
were neglected because of his absence.
We find that the Respondent’s failure to file a timely
answer has not been supported by a showing of good
cause. The proffered reason for the Respondent’s failure
to file an answer is, in essence, that its counsel neglected
to docket the initial and extended due dates set by the
Board for receipt of the answer. The Respondent does
not assert that its counsel failed to read the complaint or
the Regional Office’s letter extending the answer’s due
date, much less that such failure was for good cause.
Rather, Respondent asserts that its counsel neglected to
docket the initial and extended due dates. Neglect to
docket a due date for an answer does not constitute good
cause for failure to file a timely answer, and here the
Respondent neglected to docket both the initial due date
and the extended date.
Moreover, even if we accept the unverified assertions
that the Respondent’s counsel was absent from his office
after the Region’s June 23, 2008 letter, the Respondent
fails to specify the extent of this absence (be it hours,
days, or weeks). The Respondent only cites an absence
after its counsel’s wife was hospitalized 2 days before
the extended deadline. The Respondent does not show
that the counsel’s absence, rather than the preexisting and
unexplained failure to docket the prescribed due dates,
caused it not to file a timely answer or request for addi-
tional time. Therefore, we find that the Respondent’s
asserted reasons for failing to file an answer to the com-
plaint do not constitute good cause.2

2 See Elevator Constructors Local 2 (Unitec Elevator Services Co.),
337 NLRB 426, 427 (2002) (“inattentiveness or carelessness, absent
other circumstances or further explanation, will not excuse a late fil-
ing”); accord: King Courier, 344 NLRB 485 (2005); see also Frank J.
Foronjy & Sons Electric Corp., 304 NLRB 486 (1991) (unexplained
failure of respondent’s prior counsel to record properly new date for
filing answer did not constitute good cause).
While Chairman Schaumber believes that it is preferable to decide
cases on the merits, he agrees that default judgment is appropriate here.
This case does not implicate the concerns that he expressed in Patrician
Assisted Living Facility, 339 NLRB 1153, 1156–1161 (2003).
In finding that the Respondent has not shown good cause, Member
Liebman also relies on the Respondent’s failure to comply with the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD412
Accordingly, we deny the Respondent’s motion and
reject the answer that it filed in response to the motion
for default judgment. In the absence of good cause being
shown for the failure to file a timely answer, we grant the
General Counsel’s motion for default judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation, with an office
and place of business in Cleveland (herein Respondent’s
facility), has been engaged in the retail grocery business.
Annually, in the course and conduct of its business, the
Respondent purchases and receives goods valued in ex-
cess of $50,000 directly from points outside the State of
Ohio. We find that, at all material times, the Respondent
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that
the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Basem Odetallah held the posi-
tion of the Respondent’s president and has been a super-
visor within the meaning of Section 2(11) of the Act and
an agent of the Respondent within the meaning of Sec-
tion 2(13) of the Act. 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 food store and meat department employees, but ex-
cluding regular clerical personnel, managers and other
supervisors as defined in the Act.
Since at least February 7, 2001, and at all material
times, the Union has been the designated exclusive col-
lective-bargaining representative of the unit and, since at
least that date, the Union has been recognized as the rep-
resentative by the Respondent. This recognition has
been embodied in successive collective-bargaining agree-
ments, the most recent of which was effective from Feb-
ruary 8, 2004, to February 3, 2007, and extended by the
Respondent’s conduct and mutual agreement through
February 2, 2008.

Board’s Rules and Regulations concerning untimely filings. Sec.
102.111(c) requires that, when a party files a motion requesting per-
mission to file an untimely answer based on excusable neglect, “[t]he
specific facts relied on to support the motion shall be set forth in affi-
davit form and sworn to by individuals with personal knowledge of the
facts.” The Board has held that “[t]he signature of an attorney on the
motion will not be treated as a substitute for the required affidavit.”
Elevator Constructors Local 2 (Unitec Elevator Services Co.), supra at
426. The Respondent filed no affidavit with its motion in this case.
At all times since February 7, 2001, based on Section
9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the unit.
Since on or about September 6, 2007, and through
February 2, 2008, the Respondent has failed to continue
in effect all the terms and conditions of its collective-
bargaining agreement with respect to article II concern-
ing the deduction and remittance of union dues, by not
deducting and remitting to the Union dues for some of its
employees. The Respondent engaged in these acts and
conduct without the consent of the Union.
Since on or about January 1 through February 2, 2008,
the Respondent failed to continue in effect all of the
terms and conditions of the agreement described in arti-
cle II concerning the deduction and remittance of union
dues by, without Union consent, failing to deduct and
remit dues for all of its employees.
Since on or about September 6, 2007, and continu-
ously thereafter, the Respondent has failed to continue in
effect all the terms and conditions of its collective-
bargaining agreement with respect to article IX concern-
ing the health and welfare coverage and contributions,
and article X concerning the pension contributions, by
not making the required contributions to the health and
welfare and pension funds for some of its employees.
The Respondent engaged in these acts and conduct with-
out the consent of the Union.
Since on or about February 1, 2008, and continuously
thereafter, the Respondent has failed to continue in effect
all the terms and conditions of the agreement described
in article IX concerning health and welfare fund cover-
age, carrier and contributions, and article X concerning
the pension contributions, by not contributing to the
health and welfare fund, changing the health insurance
carrier, and by not contributing to the pension fund for
all of its employees. The Respondent engaged in these
acts and conduct without the consent of the Union.
The foregoing subjects relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining.3

3 The complaint further alleged that, even if a collective-bargaining
agreement were not in effect at the respective times, the Respondent
unlawfully stopped deducting and remitting union dues, health and
welfare fund contributions, and pension contributions for some of its
employees since about September 6, 2007, and unilaterally stopped
deducting and remitting dues for all of its employees between January 1
and February 2, 2008. The complaint alleges that these unilateral ac-
tions violated Sec. 8(a)(5) and (1) because the above subjects are man-
datory subjects of bargaining. The Respondent, by failing to file a
timely answer, has admitted that the collective-bargaining agreement
was extended until February 2, 2008. Therefore, we find it unnecessary
to rely on the alternative rationale set forth in the complaint with re-
spect to the period covered by the extended agreement.
FOREST HILLS FAMILY FOODS 413
On or about January 8, 2008, the Union requested that
the Respondent furnish it with the following information:
The names, hire dates, and hours worked on a monthly
basis of all bargaining unit employees for whom the
Employer failed to make contributions to the Pension
Fund/and or [sic] Health & Welfare Fund.
The information requested by the Union is necessary for,
and relevant to, the Union’s performance of its duties as the
exclusive bargaining representative of the Unit. Since on or
about January 8, 2008, the Respondent has failed and re-
fused to furnish the Union with the information requested
by it.
On or about February 7, 2008, the Union requested
that the Respondent furnish it the following information:
1. All employees’ earnings records including
hours worked by category for 2007.
2. Federal form 941 for the four quarters of 2007
and the employees’ 2007 W-2’s.
The information requested by the Union is necessary
for, and relevant to, the Union’s performance of its duties
as the exclusive bargaining representative of the unit.
Since on or about February 7, 2008, the Respondent has
failed and refused to furnish the Union with the informa-
tion requested by it.
Since on or about February 1, 2008, the Respondent
insisted, as a condition of reaching any collective-
bargaining agreement, that the Union agree to limit
and/or stop an audit of its books and accounts by the Un-
ion’s pension fund. The above condition is not a manda-
tory subject for the purposes of collective bargaining.
On or about February 1, 2008, in support of the above
condition, the Respondent unilaterally stopped withdraw-
ing and remitting union dues, changed health insurance
carriers, and stopped health and welfare fund contribu-
tions and pension fund contributions, without reaching
agreement or lawful impasse. By its overall conduct,
including the above conduct, the Respondent has failed
and refused to bargain in good faith with the Union as
the exclusive bargaining representative of the unit.
CONCLUSIONS OF LAW
1. By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its unit employees, within the meaning of
Section 8(d) of the Act in violation of Section 8(a)(5) and
(1) of the Act.
2. These 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 vio-
lated Section 8(a)(5) and (1) of the Act by failing to de-
duct and remit employee union dues as required by the
collective-bargaining agreement, we shall order the Re-
spondent to deduct and remit to the Union dues, pursuant
to valid check-off authorizations, that were not deducted
from September 6, 2007, through February 2, 2008, with
interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).4
Having found that the Respondent violated Section
8(a)(5) and (1) by unilaterally ceasing to make contribu-
tions to the health and welfare and pension funds on be-
half of some unit employees since September 6, 2007,
and all unit employees since February 1, 2008, we shall
order the Respondent to make whole its unit employees
by making all such delinquent fund contributions on be-
half of unit employees that have not been made since
those dates, including any additional amounts due the
funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979).5 We shall also order the
Respondent to reimburse unit employees for any ex-
penses ensuing from its failure to make the required con-
tributions, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), such amounts to be computed in the manner
set forth in 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, supra.
Having found that the Respondent unilaterally changed
the unit employees’ health insurance carrier, we shall
order the Respondent, on request of the Union, to restore
the status quo ante that existed prior to its unlawful
change in health insurance carriers.6 In addition, we shall

4 See, e.g., Stackpole Components Co., 232 NLRB 723 (1977).
5 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent's delinquent contributions to the funds during the pe-
riod of the delinquency, the Respondent will reimburse the employee,
but the amount of such reimbursement will constitute a setoff to any
amount that the Respondent otherwise owes the funds.
6 As the Board stated in Larry Geweke Ford, 344 NLRB 628 (2005),
“[t]he standard remedy for unilaterally implemented changes in health
insurance coverage is to order the restoration of the status quo ante.”
(cites omitted). The Respondent may litigate in compliance whether it
would be unduly burdensome to restore the health insurance carrier in
effect prior to February 2, 2008. Id. See also Laurel Baye Healthcare of
Lake Lanier, LLC, 352 NLRB 179 fn. 3 (2008). If, however, the Union
chooses continuation of the unilaterally implemented health insurance
policy, then make-whole relief for the unilateral changes is inapplica-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD414
order the Respondent to make its unit employees whole
for any expenses ensuing from the unilateral change in
carrier. This reimbursement to employees shall be com-
puted as prescribed in Ogle Protection Service, supra.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to bargain in good
faith by insisting, as a condition of reaching a collective-
bargaining agreement, on a nonmandatory subject of
bargaining, and by unilaterally stopping deduction and
remittance of union dues, changing the health insurance
carrier, and stopping health and welfare and pension fund
contributions on February 1, 2008, in support of that
condition, we shall order the Respondent, on request, to
bargain in good faith with the Union.
Finally, we shall order the Respondent to provide the
Union with the information requested on January 8 and
February 7, 2008.
ORDER
The National Labor Relations Board orders that the
Respondent, Forest Hills Supermarket, Inc., d/b/a Forest
Hills Family Foods, Cleveland, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
United Food & Commercial Workers Union Local 880 as
the exclusive bargaining representative of the following
unit:
All food store and meat department employees, but ex-
cluding regular clerical personnel, managers and other
supervisors as defined in the Act.
(b) Failing and refusing to deduct and remit union dues
to the Union as required by its collective-bargaining
agreement with the Union.
(c) Failing and refusing to make health and welfare
and pension contributions as required by its collective-
bargaining agreement with the Union.
(d) Unilaterally changing its health insurance carrier.
(e) Insisting on a nonmandatory subject of bargaining
as a condition of reaching an agreement and making uni-
lateral changes in support of that condition.
(f) Refusing to provide the Union with requested in-
formation that is necessary and relevant to the perform-
ance of the Union’s role as exclusive bargaining repre-
sentative of the unit employees.

ble. See id. (citing Brooklyn Hospital Center, 344 NLRB 404 (2005)).
Although Member Liebman dissented on that point in Brooklyn Hospi-
tal Center, supra at fn. 3, she recognizes that it is extant Board law and,
for that reason alone, applies it here.
(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) On request, bargain in good faith with the Union as
the exclusive bargaining representative of the employees.
(b) Deduct and remit union dues as required by the
2004–2007 collective-bargaining agreement, as ex-
tended, and reimburse the Union for its failure to do so
from September 6, 2007, through February 2, 2008, with
interest, as set forth in the remedy section of this deci-
sion.
(c) Make all the delinquent health and welfare and
pension contributions on behalf of the unit employees
that have not been paid since September 6, 2007, includ-
ing any additional amounts due the funds, in the manner
set forth in the remedy section of this decision.
(d) Make unit employees whole for any expenses ensu-
ing from the Respondent’s failure to make the required
health and welfare and pension contributions, with inter-
est, in the manner set forth in the remedy section of this
decision.
(e) On request of the Union, rescind its change to the
carrier providing health insurance and restore the insur-
ance furnished under the carrier prior to the unilateral
change.
(f) Make whole unit employees for any expenses ensu-
ing from the unilateral change in health insurance carrier.
(g) Furnish to the Union in a timely manner the infor-
mation requested by it on January 8 and February 7,
2008.
(h) Within 14 days after service by the Region, post at
its facility in Cleveland, Ohio, copies of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 8,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

7 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.”
FOREST HILLS FAMILY FOODS 415
to all current employees and former employees employed
by the Respondent at any time since September 6, 2007.
(i) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble 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 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 bargain in good faith
with United Food and Commercial Workers Union Local
880 as the exclusive bargaining representative of the fol-
lowing unit:
All food store and meat department employees, but ex-
cluding regular clerical personnel, managers and other
supervisors as defined in the Act.
WE WILL NOT fail and refuse to deduct and remit union
dues to the Union as required by our collective-
bargaining agreement with the Union.
WE WILL NOT fail and refuse to make health and wel-
fare and pension contributions as required by our collec-
tive-bargaining agreement with the Union.
WE WILL NOT unilaterally change our health insurance
carrier.
WE WILL NOT insist on a nonmandatory subject of bar-
gaining as a condition of reaching an agreement and
make unilateral changes in support of that condition.
WE WILL NOT refuse to provide the Union with infor-
mation that is necessary and relevant to the performance
of the Union’s role as exclusive bargaining representa-
tive of the unit employees.
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 in good faith with the
Union as the exclusive bargaining representative of the
unit employees.
WE WILL deduct and remit union dues as required by
our 2004-2007 collective-bargaining agreement, as ex-
tended, and WE WILL reimburse the Union for our failure
to do so from September 6, 2007, through February 2,
2008, with interest.
WE WILL make all the delinquent health and welfare
and pension contributions on your behalf that have not
been paid since September 6, 2007, including any addi-
tional amounts due the funds and WE WILL make you
whole for any expenses ensuing from our failure to make
the required health and welfare and pension contribu-
tions, with interest.
WE WILL, on request of the Union, rescind the change
in the carrier providing health insurance and restore the
insurance furnished prior to our February 2, 2008 unilat-
eral change of carrier.
WE WILL furnish to the Union in a timely manner the
information requested by it on January 8 and February 7,
2008.
FOREST HILLS SUPERMARKET, INC., D/B/A
FOREST HILLS FAMILY FOODS