Pearl City Tavern

National Labor Relations Board - Board Decisions

Apr 11, 1994

313 N.L.R.B. 1037 (N.L.R.B. 1994)

1037
313 NLRB No. 180
PEARL CITY TAVERN
PCT International Corporation, Inc. and Fukuokas,
Inc., d/b/a Pearl City Tavern and Hotel Em-
ployees & Restaurant Employees, Local 5,
AFL–CIO. Case 37–CA–3336
April 11, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
Upon a charge filed by Hotel Employees & Res-
taurant Employees, Local 5, AFL–CIO, the Union, on
July 13, 1993, the General Counsel of the National
Labor Relations Board issued a complaint on August
27, 1993, against PCT International Corporation, Inc.
and Fukuokas, Inc., d/b/a Pearl City Tavern, the Re-
spondent, alleging that it has violated Section 8(a)(1)
and (5) of the National Labor Relations Act. Although
properly served copies of the charge and complaint,
the Respondent failed to file an answer.
On February 25, 1994, the Acting General Counsel
filed a Motion for Summary Judgment with the Board.
On March 1, 1994, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on 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 the Region, by letter dated October 26,
1993, notified the Respondent that unless an answer
were received by November 2, 1993, a Motion for
Summary Judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the Acting
General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Hawaii cor-
poration, with an office and place of business in Pearl
City, Hawaii, has been engaged in the operation of a
restaurant and lounge. During the 12-month period
ending June 30, 1993, the Respondent, in conducting
its business operations, derived gross revenues in ex-
cess of $500,000, and purchased and received at its
Pearl City, Hawaii facility products, goods, and mate-
rials valued in excess of $5000 which originated from
points outside the State of Hawaii. 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.
II. ALLEGED UNFAIR LABOR PRACTICES
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 employees of the Respondent in the State of
Hawaii, excluding professional, managerial, sec-
retarial employees, and office clerical employees,
guards and watchpersons, confidential empoyees,
and supervisors as defined by the Labor Manage-
ment Relations Act of 1947, as amended.
Since about 1971, and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit, and since then,
the Union has been recognized as the representative by
the Respondent. This recognition has been embodied in
successive collective-bargaining agreements, the most
recent of which is effective by its terms from March
1, 1986 to March 1, 1989, with automatic yearly re-
newals, through and including the term March 1, 1993
to March 1, 1994.
At all times since about 1971, based on Section 9(a)
of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the unit.
About March 1, 1986, the Respondent and the
Union entered into a collective-bargaining agreement
with respect to terms and conditions of employment of
the unit, to remain in effect for the period March 1,
1986 through March 1, 1989, and from year to year
thereafter.
Since about January 13, 1993, the Respondent failed
to continue in effect all the terms and conditions of the
agreements by failing to remit to the Union dues which
it deducted from employees’ paychecks.
In addition, since about July 15, 1993, the Respond-
ent also failed to continue in effect all the terms and
conditions of the agreements by failing to pay accrued
pro rata vacation and health benefits to unit employees
who were terminated.
Although the terms and conditions of employment
described above are mandatory subjects for the pur-
pose of collective bargaining, the Respondent engaged
in the conduct without the Union’s consent.
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We are unable to determine from the complaint’s reference to
‘‘accrued pro rata . . . health benefits’’ whether employees were
simply entitled to a lump sum payment or whether some sort of
medical coverage is involved. If the latter is determined to be the
case at the compliance stage, our ‘‘make-whole’’ remedy will also
require the Respondent to reimburse employees for any expenses en-
suing from the Respondent’s unlawful conduct, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981), with interest as prescribed in New Horizons for
the Retarded, supra.
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
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.’’
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively and in good faith with the exclusive collec-
tive-bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
(5) and Section 8(d) 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 since January 13,
1993, to remit to the Union dues which it deducted
from employees’ paychecks, we shall order the Re-
spondent to comply with the agreements in this respect
and to make whole the Union for its failure to do so
by remitting such withheld dues to the Union as re-
quired by the agreement, with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
In addition, having found that the Respondent has
also violated Section 8(a)(5) and (1) by failing since
July 15, 1993, to pay accrued pro rata vacation and
health benefits to its terminated unit employees, we
shall order the Respondent to also comply with the
agreements in this respect and to make whole said em-
ployees for any losses resulting from its unlawful con-
duct, in the manner set forth in Ogle Protection Serv-
ice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest as prescribed in New Horizons
for the Retarded, supra.1
ORDER
The National Labor Relations Board orders that the
Respondent, PCT International Corporation, Inc. and
Fukuokas, Inc., d/b/a Pearl City Tavern, Pearl City,
Hawaii, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to bargain collectively and in good faith
with Hotel Employees & Restaurant Employees, Local
5, AFL–CIO as the exclusive bargaining representative
of the employees in the unit described below, by fail-
ing to remit to the Union dues which it deducted from
employees’ paychecks and failing to pay accrued pro
rata vacation and health benefits to its terminated em-
ployees, as required by its collective-bargaining agree-
ments with the Union:
All employees of the Respondent in the State of
Hawaii, excluding professional, managerial, sec-
retarial employees, and office clerical employees,
guards and watchpersons, confidential empoyees,
and supervisors as defined by the Labor Manage-
ment Relations Act of 1947, as amended.
(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) Comply with the terms and conditions of the col-
lective-bargaining agreements by remitting to the
Union dues which it deducts from employees’ pay-
checks and paying accrued pro rata vacation and health
benefits to terminated employees as required by the
agreements.
(b) Make whole the Union and terminated employ-
ees for its failure, since January 13 and July 15, 1993,
respectively, to remit such dues to the Union and to
pay such benefits to terminated employees as required
by the agreements, in the manner set forth in the rem-
edy section of this decision.
(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.
(c) Post at its facility in Pearl City, Hawaii, copies
of the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director
for Region 37, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
1039PEARL CITY TAVERN
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) 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 to bargain collectively and in
good faith with Hotel Employees & Restaurant Em-
ployees, Local 5, AFL–CIO as the exclusive bargain-
ing representative of the employees in the unit de-
scribed below, by failing to remit to the Union dues
which we deducted from employees’ paychecks and
failing to pay accrued pro rata vacation and health ben-
efits to our terminated employees, as required by our
collective-bargaining agreements with the Union:
All of our employees in the State of Hawaii, ex-
cluding professional, managerial, secretarial em-
ployees, and office clerical employees, guards and
watchpersons, confidential empoyees, and super-
visors as defined by the Labor Management Rela-
tions Act of 1947, as amended.
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 comply with the terms and conditions of
the collective-bargaining agreements by remitting to
the Union dues which we deduct from employees’ pay-
checks and by paying accrued pro rata vacation and
health benefits to terminated employees, and WE WILL
make whole the Union and terminated employees for
our failure to do so since January 13 and July 15,
1993, respectively.
PCT INTERNATIONAL CORPORATION,
INC. AND FUKUOKAS, INC., D/B/A PEARL
CITY TAVERN