Massachusetts Coastal Seafoods

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 731 (N.L.R.B. 1994)

731
313 NLRB No. 123
MASSACHUSETTS COASTAL SEAFOODS
1 The record clearly indicates that the Respondent’s answer, dated
August 1, 1986, was received in the Regional Office on August 4,
1986, and not on August 4, 1991, as erroneously stated in General
Counsel’s motion. The error does not affect our consideration of the
merits of the motion.
The record before us does not provide a full explanation for the
7-year delay between the Respondent’s filing of the answer to the
complaint and the General Counsel’s filing of the Motion for Sum-
mary Judgment. We note, however, that Case 1–CA–21429, which
involves the same parties and overlapping issues, was pending before
Administrative Law Judge Richard A. Scully at the time the charge
in this proceeding was filed. Case 1–CA–21429 was resolved by the
Board on March 30, 1989. (See 293 NLRB 496.) Members Devaney
and Truesdale did not participate in that proceeding.
2 Implicit in the judge’s findings was the finding that the Union’s
demand for recognition encompassed the unit found appropriate.
Thus, the unit in which recognition was sought encompasses the
same classifications as the unit described in par. 7 of the complaint
in the instant case.
Massachusetts Coastal Seafoods, Inc. and United
Food & Commercial Workers Union, Local 15,
AFL–CIO. Case 1–CA–23903
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
Upon a charge filed by the United Food & Commer-
cial Workers Union, Local 15, AFL–CIO (the Union)
on June 2, 1986, the General Counsel of the National
Labor Relations Board issued a complaint against Mas-
sachusetts Coastal Seafoods, Inc. (the Respondent) al-
leging that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act by unilaterally sub-
stituting a new health insurance plan for the employ-
ees. The Respondent filed an answer on August 4,
1986.
On July 21, 1993, the General Counsel filed a Mo-
tion to Strike Portions of the Respondent’s Answer,
and for Summary Judgment. On July 26, 1993, 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 re-
sponse. The allegations in the motion are therefore un-
disputed.1
Ruling on Motion for Summary Judgment
The General Counsel contends that the Respondent’s
denials to the allegations in paragraphs 6–10, 13, and
14 of the complaint, and its affirmative defenses
should be stricken and that the matters alleged in para-
graphs 6–10, 13, and 14 should be deemed admitted.
The Respondent admitted all other complaint allega-
tions.
Specifically, the Respondent’s answer admits the al-
legations concerning the filing of the charge in the in-
stant matter (par. 1), the business of the Respondent
(par. 2), and the Respondent’s involvement in inter-
state commerce and employer status (pars. 3, 4, and 5).
The Respondent admits that Michael Kobialka, Robert
Tomer, Duarte Medina, and Jose Tavares occupy the
positions alleged in paragraph 6 of the complaint and
admits the supervisory and agency status of Kobialka
and Tomer; however, it denies that Paul Harrington is
plant manager and denies the supervisory and agency
status of Harrington, Medina, and Tavares. Further, the
Respondent denies that the unit alleged in paragraph 7
of the complaint is the appropriate unit, and that a ma-
jority of the employees in the unit designated the
Union as their collective-bargaining representative on
September 12 and 13, 1983, as alleged in paragraph 8.
The Respondent admits that the Union requested rec-
ognition on September 13, 1983, but denies that the re-
quest encompassed the unit described in the complaint
(par. 9) and that the Union is the exclusive representa-
tive of the employees for the purpose of collective bar-
gaining (par. 10). The Respondent admits that it re-
placed the existing health insurance plan with a dif-
ferent plan (par. 11) and did so without giving the
Union notice or an opportunity to bargain (par. 12),
but denies that its conduct violates the Act or affects
commerce (pars. 13 and 14). Additionally, the Re-
spondent’s answer states that it was and is free to
make changes to its health insurance plan unilaterally
because the Union was never certified as the exclusive
bargaining representative of the employees in an ap-
propriate unit and because the Board has never issued
a remedial bargaining order directing the Respondent
to deal with the Union as the exclusive bargaining rep-
resentative of the employees in an appropriate unit. Fi-
nally, the Respondent answers that the changes made
to the health insurance plan were necessary to maintain
the Respondent’s economic viability.
As noted above, the unfair labor practice charge in
the instant matter was filed while Case 1–CA–21429
was pending before an administrative law judge. On
March 30, 1989, the Board affirmed many of the
judge’s findings in that case, including the appropriate
unit and the finding that the Union attained majority
status in the unit on September 13, 1983, and was the
exclusive bargaining representative of the employees
from that date.2 Further, because of the Respondent’s
‘‘hallmark’’ unfair labor practices, the Board’s deci-
sion included a Gissel (395 U.S. 595 (1969)) bargain-
ing order directing that the Respondent ‘‘recognize, ef-
fective September 13, 1983, and on request, bargain
with the Union as the exclusive collective-bargaining
representative of all employees in the appropriate unit
. . . .’’ (293 NLRB 496, 502). Thus, in the absence
of a showing otherwise, the Respondent clearly was in
1986, and still is, obligated to recognize the Union and
bargain with it in good faith on matters of wages,
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 We are mindful that the Board declined to issue a certification
of representative in that case because of objectionable conduct on
each party’s part, and that the Gissel bargaining order required that
the Respondent bargain with the Union for a reasonable period of
time. (293 NLRB at 500 fn. 11.) There has been no showing that
Respondent’s obligation to recognize the Union and bargain with it,
has been extinguished since the issuance of that order.
hours, and terms and conditions of employment.3
Hence, its answers to the contrary shall be stricken and
these allegations shall be deemed to be admitted.
The Respondent’s answer to the complaint admits
that it did not notify the Union about changing the em-
ployees’ health insurance plan, a mandatory subject of
bargaining, and that it did not provide the Union with
an opportunity to bargain about the change. Valley
Counseling Services, 305 NLRB 959 (1991); Pioneer
Press, 297 NLRB 972 (1990). The Respondent’s de-
fense that the change in plans was ‘‘necessary to main-
tain economic viability’’ is insufficient to justify a fail-
ure to bargain concerning a unilateral change. Auburn
Die Co., 282 NLRB 1044 (1987); Oak Cliff-Golman
Baking Co., 207 NLRB 1063, 1064 (1973). Further,
having admitted that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act, and having admitted the conduct that is the
gravamen of the complaint, the Respondent’s denials
of the conclusional paragraphs that it violated Section
8(a)(5) and (1) and that its unfair labor practices affect
commerce raise no issues warranting a hearing. There-
fore, these denials shall be stricken and the allegations
are deemed to be admitted.
Finally, with respect to the supervisory status of the
individuals identified in paragraph 6, the Respondent
admitted that at all material times Kobialka was its
president and owner and that Tomer was its purchasing
agent and that both persons were supervisors and
agents within the meaning of the Act. The General
Counsel points out that notwithstanding the Respond-
ent’s denials in connection with the other named indi-
viduals, in Case 1–CA–21429 Judge Scully expressly
found that Working Foremen Tavares and Medina
were supervisors and implicitly found that Plant Man-
ager Harrington was a supervisor when the Respondent
violated Section 8(a)(1) through conduct attributed to
him. We note that Judge Scully based his findings
about Harrington’s conduct on evidence presented after
42 days of hearing that ended on February 27, 1985.
Although the judge’s decision issued December 31,
1986, it is entirely possible that Harrington was no
longer plant manager on May 19, 1986, when the uni-
lateral change in health insurance plans here occurred.
Therefore, we decline to strike the Respondent’s an-
swer to paragraph 6 as to the allegations concerning
Harrington. There is no such factual dispute regarding
the supervisory status of Tavares and Medina, how-
ever. The Respondent’s answer to the complaint admits
that they are working foremen and denies only their
supervisory and agency status. Judge Scully specifi-
cally addressed the 2(11) status of the two working
foremen and found that they were supervisors. Inas-
much as the answer to the instant complaint admits
that these individuals occupy working foreman posi-
tions, we conclude that the answer is frivolous in its
denial of their supervisory status, and we shall strike
these answers and deem the allegations as to Tavares
and Medina to be admitted.
In the absence of good cause being shown and on
the basis of all of the foregoing, we find merit in the
General Counsel’s motion. Therefore, with the excep-
tion of Harrington’s position and status, the Respond-
ent’s denials to the complaint and its affirmative de-
fenses are stricken and deemed to be admitted. Further,
inasmuch as the factual dispute concerning Har-
rington’s position and status has no bearing on the Re-
spondent’s admitted unilateral substitution of the em-
ployees’ health insurance plan, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in Magnolia, Massachusetts, is en-
gaged in the business of processing frozen fish. The
Respondent, annually, in the course and conduct of its
operations, purchases and receives goods, materials,
and supplies valued in excess of $50,000 directly from
points outside the Commonwealth of Massachusetts.
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 orga-
nization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all times material, the following named persons
have occupied the positions set forth opposite their re-
spective names, and are now, and have been at all
times material herein, supervisors of the Respondent
within the meaning of Section 2(11) of the Act and
agents of the Respondent within the meaning of Sec-
tion 2(13) of the Act.
Michael Kobialka President/Owner
Robert Tomer Purchasing Agent
Duarte Medina Working Foreman
Jose Tavares Working Foreman
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 full-time and regular part-time production and
maintenance employees employed by the Re-
733MASSACHUSETTS COASTAL SEAFOODS
4 We have been administratively advised that the Respondent has
complied with the Board’s Order in Case 1–CA–21429 (293 NLRB
496) and thus may already have bargained concerning a health insur-
ance plan for the unit employees since its unlawful unilateral change
in health plans. In the event it has so bargained, it shall not be re-
quired to do so again.
spondent at its Magnolia, Massachusetts location,
including cutters, packers, stackers, label table,
cleanup, breader and batter, warehouse, freezer,
and quality control employees, and truck drivers,
but excluding officer clerical employees, profes-
sional employees, salesmen, guards, and super-
visors as defined in the Act.
On or about September 12 and 13, 1983, a majority
of the employees in the unit designated and selected
the Union as their representative for the purposes of
collective bargaining. On September 13, 1986, the
Union requested the Respondent to recognize it as the
exclusive collective-bargaining representative of the
employees in the unit and to bargain collectively with
it as the exclusive collective-bargaining representative
of the employees with respect to their rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment. At all times since September
13, 1983, the Union by virtue of Section 9(a) of the
Act, has been, and is, the exclusive representative of
the employees in the unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment.
On or about June 1, 1986, the Respondent replaced
the unit employees’ existing health insurance plan with
a new, contributory health insurance plan. The Re-
spondent replaced the unit employees’ health insurance
plan without prior notice to the Union and without
having afforded the Union an opportunity to bargain
about this change as the exclusive representative of the
Respondent’s employees. We find that this unilateral
conduct constitutes a failure and refusal to bargain col-
lectively with the Union as the representative of its
unit employees, in violation of Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
By failing and refusing to bargain with the Union by
unilaterally replacing the employees’ existing health
insurance plan, the Respondent has 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. We shall
order, as the General Counsel requests, that the Re-
spondent bargain with the Union, on request, over the
health insurance plan provided pursuant to the Re-
spondent’s unlawful unilateral change in health plans,
to the extent it has not done so,4 and make its employ-
ees whole for all expenses incurred and benefits lost
as a result of the Respondent’s failure to give the
Union notice of its intent to change the employees’
health insurance plan and its failure to afford the
Union an opportunity to bargain over a health insur-
ance plan.
ORDER
The National Labor Relations Board orders that the
Respondent, Massachusetts Coastal Seafoods, Inc., its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with United Food
& Commercial Workers Union, Local 15, AFL–CIO
about its replacement of the health insurance plan with
a new, contributory health insurance plan for employ-
ees in the following unit:
All full-time and regular part-time production and
maintenance employees employed by the Re-
spondent at its Magnolia, Massachusetts location,
including cutters, packers, stackers, label table,
cleanup, breader and batter, warehouse, freezer,
and quality control employees, and truck drivers,
but excluding officer clerical employees, profes-
sional employees, salesmen, guards, and super-
visors as defined in the Act.
(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 as the exclu-
sive representative of the employees in the above-de-
scribed unit about the health insurance plan provided
pursuant to unlawful unilateral change in health plans,
to the extent it has not done so, and make its employ-
ees whole for all expenses incurred and benefits lost
as a result of the Respondent’s failure to give the
Union notice of its intent to change the employees’
health insurance plan and its failure to afford the
Union an opportunity to bargain over the health insur-
ance plan.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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) Post at its facility in Magnolia, Massachusetts,
copies of the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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 with United
Food & Commercial Workers Union, Local 15, AFL–
CIO about our replacement of the health insurance
plan with a new, contributory health insurance plan for
employees in the following unit:
All full-time and regular part-time production and
maintenance employees employed by us at our
Magnolia, Massachusetts location, including cut-
ters, packers, stackers, label table, cleanup,
breader and batter, warehouse, freezer, and quality
control employees, and truck drivers, but exclud-
ing officer clerical employees, professional em-
ployees, salesmen, guards, and supervisors as de-
fined in the Act.
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 as the
exclusive representative of the employees in the above-
described unit about the health insurance plan provided
pursuant to our unlawful unilateral change in health
plans, to the extent we have not done so, and make the
employees whole for all expenses incurred and benefits
lost as a result of our failure to give the Union notice
of our intent to change the employees’ health insurance
plan and to afford the Union an opportunity to bargain
over the health insurance plan.
MASSACHUSETTS COASTAL SEAFOODS, INC.