Pittsburgh Athletic Association

National Labor Relations Board - Board Decisions

Aug 29, 2016

364 NLRB No. 105 (N.L.R.B. 2016)

364 NLRB No. 105
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.
Pittsburgh Athletic Association and Unite Here Local
57, AFL–CIO, CLC. Case 06–CA–169088
August 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by
UNITE HERE Local 57, AFL–CIO, CLC (the Union) on
February 4, 2016, the General Counsel issued a com-
plaint on May 25, 2016, against Pittsburgh Athletic As-
sociation (the Respondent), alleging that the Respondent
has violated Section 8(a)(5) and (1) of the National La-
bor Relations Act. The Respondent failed to file an an-
swer.
On June 24, 2016, the General Counsel filed a Motion
for Default Judgment with the Board. Thereafter, on
June 28, 2016, the Board issued an order transferring the
proceeding to the Board and Notice to Show Cause why
the motion should not be granted. The Respondent filed
no response. The allegations in the motion are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a 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 unless an answer was received by June 8, 2016, the
Board may find, pursuant to a motion for default judg-
ment, that the allegations in the complaint are true. Fur-
ther, the undisputed allegations in the General Counsel’s
motion disclose that by letter dated June 9, 2016, the
Region advised the Respondent that unless an answer
was received by the third business day following receipt
of the letter, a motion for default judgment would be
filed. The Respondent again failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations of the
complaint to be admitted as true, and we grant the Gen-
eral 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 non-profit
Pennsylvania corporation with an office and place of
business in Pittsburgh, Pennsylvania, has been engaged
in operating a social club and selling food, beverages,
and services to members and their guests.
In conducting its operations during the 12-month peri-
od ending January 31, 2016, the Respondent derived
gross revenues in excess of $500,000 and purchased and
received at its Pittsburgh, Pennsylvania facility, goods
valued in excess of $50,000 from other enterprises, in-
cluding Sysco Food Service, located within the Com-
monwealth of Pennsylvania, which other enterprise had
received these goods directly from points outside the
Commonwealth of Pennsylvania.
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
At all material times, the following individuals held
the positions set forth opposite their respective 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:
Jeffrey Borello Co-General Manager
Thomas Trimbur President, Board of Directors
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time food and beverage
and housekeeping employees employed by the Re-
spondent at its Pittsburgh, Pennsylvania facility; ex-
cluding guards, professional employees and supervisors
as defined in the Act and all other employees.
At all material times, Respondent has recognized the
Union as the exclusive collective-bargaining representa-
tive of the unit. This recognition has been embodied in
successive collective-bargaining agreements, the most
recent of which was effective by its terms from March 1,
2012 to February 28, 2015.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since about November 2015, the Respondent has
failed to maintain health insurance for its unit employees.
The subject set forth above relates to wages, hours, and
other terms and conditions of employment of the unit and
is a mandatory subject of bargaining for the purposes of
collective bargaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to this conduct and/or the ef-
fects of this conduct.
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 unit employees, in viola-
tion of Section 8(a)(5) and (1) of the Act. The Respond-
ent’s unfair labor practices described above affect com-
merce 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 violated Section 8(a)(5) and
(1) by failing to maintain health insurance, we shall order
the Respondent to restore and maintain the unit employ-
ees’ health insurance and to make the unit employees
whole by reimbursing them for any expenses ensuing
from the Respondent’s failure to maintain health insur-
ance, as set forth in Kraft Plumbing & Heating, Inc., 252
NLRB 891, 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), plus in-
terest computed as set forth in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010).1 In
addition, in accordance with Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB No. 10 (2014), and
AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), we shall require the Respondent to compensate
unit employees for the adverse tax consequences, if any,
of receiving a lump-sum backpay award and to file re-
ports with the Regional Director for Region 6 allocating

1 To the extent that an employee has paid premiums that have been
accepted by the insurer in lieu of the Respondent’s delinquent payments
during the period of the delinquency, the Respondent will reimburse the
employee.
the backpay awards to the appropriate calendar year for
each employee.
ORDER
The National Labor Relations Board orders that the
Respondent, Pittsburgh Athletic Association, Pittsburgh,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing to maintain unit employee’s health insur-
ance without first notifying UNITE HERE Local 57,
AFL–CIO, CLC (the Union) and giving it an opportunity
to bargain.
(b) 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) Restore and maintain the unit employees’ health in-
surance as it previously existed.
(b) Make unit employees whole for any expenses re-
sulting from the Respondent’s failure to maintain health
insurance, in the manner set forth in the remedy section
of the decision.
(c) Compensate unit employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 6,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
year for each employee.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at
its facility in Pittsburgh, Pennsylvania copies of the at-
tached notice marked “Appendix”.2 Copies of the notice,
on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are

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 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.”
PITTSBURGH ATHLETIC ASSOCIATION 3
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since November 2015.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 6 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 29, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, 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 to maintain your health insurance
without first notifying UNITE HERE Local 57, AFL–
CIO, CLC (the Union) and giving it an opportunity to
bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL restore and maintain your health insurance as
it previously existed.
WE WILL make you whole for any expenses resulting
from our failure to maintain your health insurance, plus
interest.
PITTSBURGH ATHLETIC ASSOCIATION
The Board’s decision can be found at
www.nlrb.gov/case/06–CA–169088 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half St., S.E., Washington, D.C.
20570, or by calling (202) 273–1940.