United Memorial Gardens

National Labor Relations Board - Board Decisions

Sep 9, 2003

340 N.L.R.B. 98 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 98
Siena-Meadco, LLC d/b/a United Memorial Gardens
and United Steelworkers of America AFL–CIO,
CLC. Case 7–CA–45738
September 9, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
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. Based on a charge and
amended charge filed by United Steelworkers of Amer-
ica, AFL–CIO, CLC, on December 17, 2002, and Febru-
ary 26, 2003, respectively, the General Counsel issued a
complaint on February 27, 2003, against Siena-Meadco,
LLC d/b/a United Memorial Gardens, the Respondent,
alleging that it has violated Section 8(a)(1) and (5) of the
Act. The Respondent failed to file an answer.
On April 7, 2003, the General Counsel filed a Motion
for Default Judgment with the Board. On April 10,
2003, the Board issued an order transferring the proceed-
ing to the Board and a 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 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 unless an answer was filed by March 13, 2003, all
the allegations in the complaint would be considered
true. Further, the undisputed allegations in the motion
disclose that the Region, by letter dated March 14, 2003,
notified the Respondent that unless an answer was re-
ceived by March 27, 2003, a motion for default judgment
would be filed. Nevertheless, the Respondent did not file
an answer to the complaint.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’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 corporation,
with an office and place of business at 4800 Curtis Road
in Plymouth, Michigan, has been engaged in the business
of operating cemeteries. During the calendar year ending
December 31, 2002, the Respondent, in conducting its
business operations, had gross revenue in excess of
$500,000 and purchased and received products, goods,
and materials valued in excess of $5000 from points lo-
cated outside the State of Michigan. 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 names and have
been supervisors of Respondent within the meaning of
Section 2(11) of the Act and agents within the meaning
of Section 2(13) of the Act:

Rich Busch Owner
Matt Kappers Chief Operating Officer
Larry Grimm Operations Manager
Gerald Grandsen Superintendent

On August 20, 2002, a Board election was conducted
among the employees in the following appropriate unit in
Case 7–RC–22307, in which a majority of the unit em-
ployees cast votes designating the Union as their exclu-
sive collective-bargaining representative:
All full-time and regular part-time crew coordinators,
maintenance employees and grounds workers em-
ployed by the Respondent at its facility located at 4800
Curtis Road, Plymouth, Michigan; but excluding all of-
fice clerical employees, superintendents, managers,
salespersons, confidential employees, professional em-
ployees, and guards and supervisors as defined in the
Act.
On October 8, 2002, the Union was certified as the ex-
clusive collective-bargaining representative of the unit.
Since about August 20, 2002, the Union, based on Sec-
tion 9(a) of the Act, has been the exclusive collective-
bargaining representative of the unit.
For the weeks including the holidays of November 28
and December 25, 2002, and January 1, 2003, contrary to
its previous practice, the Respondent failed to include
holiday hours in its calculation of employees’ hours
worked and to pay overtime accordingly.
This subject relates to wages, hours, and other terms
and conditions of employment of the unit and is a manda-
tory subject for the purposes of collective bargaining.
The Respondent engaged in the above conduct without
having afforded the Union notice and a meaningful op-
portunity to negotiate and bargain about the unilateral
change and its effects on the unit.
340 NLRB No. 15
UNITED MEMORIAL GARDENS 99
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of the unit, and has thereby
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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 has violated Section 8(a)(5)
and (1) by unilaterally failing, contrary to its past prac-
tice, to include holiday hours in the calculation of em-
ployee hours worked, and to pay overtime accordingly,
for the weeks including the holidays of November 28 and
December 25, 2002, and January 1, 2003, we shall order
the Respondent to rescind this unilateral change and
make the unit employees whole for any loss of earnings
and other benefits suffered as a result of the Respon-
dent’s unlawful conduct. Backpay shall be computed in
accordance with 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, 283
NLRB 1173 (1987).1
ORDER
The National Labor Relations Board orders that the
Respondent, Siena-Meadco, LLC d/b/a United Memorial
Gardens, Plymouth, Michigan, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with United Steel-
workers of America, AFL–CIO, CLC, as the exclusive
bargaining representative of the employees in the unit set
forth below, by unilaterally failing, contrary to its past
practice, to include holiday hours in the calculation of
employee hours worked, and to pay overtime accord-
ingly. The appropriate unit is:

All full-time and regular part-time crew coordinators,
maintenance employees and grounds workers em-

1 The General Counsel requests that we also issue an affirmative
bargaining order requiring the Respondent to bargain in good faith with
the Union, on request. However, the complaint does not allege that the
Respondent has generally failed or refused to recognize or bargain in
good faith with the Union following its certification, and there is no
indication that the Respondent’s unilateral change affected the parties’
negotiations. Accordingly, we find that a general affirmative bargain-
ing order is inappropriate. For the same reason, we will not extend the
certification year. See Cortland Transit, 324 NLRB 372 (1997).
ployed by the Respondent at its facility located at 4800
Curtis Road, Plymouth, Michigan; but excluding all of-
fice clerical employees, superintendents, managers,
salespersons, confidential employees, professional em-
ployees, and guards and supervisors as defined in the
Act.

(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) Rescind the unilateral change in its practice of in-
cluding holiday hours in the calculation of employee
hours worked and paying overtime accordingly.
(b) Make employees whole, with interest, for any loss
of earnings or other benefits they suffered as a result of
Respondent’s failure to continue this practice for the
weeks including the holidays of November 28 and De-
cember 25, 2002, and January 1, 2003, as set forth in the
remedy section of this decision.
(c) 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 re-
cords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in Plymouth, Michigan, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on
forms provided by the Regional Director for Region 7,
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
to all current employees and former employees employed
by the Respondent at any time since November 28, 2002.
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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 100
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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 any 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 with United
Steelworkers of America, AFL–CIO, CLC, as the exclu-
sive bargaining representative of the employees in the
unit set forth below, by unilaterally failing, contrary to
our past practice, to include holiday hours in the calcula-
tion of employee hours worked, and to pay overtime ac-
cordingly. The unit is:

All full-time and regular part-time crew coordinators,
maintenance employees and grounds workers em-
ployed by us at our facility located at 4800 Curtis Road,
Plymouth, Michigan; but excluding all office clerical
employees, superintendents, managers, salespersons,
confidential employees, professional employees, and
guards and supervisors as defined 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 rescind the unilateral change in our practice
of including holiday hours in the calculation of employee
hours worked and paying overtime accordingly.
WE WILL make the unit employees whole, with interest,
for any loss of earnings and other benefits suffered as a
result of our failure to continue this practice for the
weeks including the holidays of November 28 and De-
cember 25, 2002, and January 1, 2003.

SIENA-MEADCO, LLC D/B/A UNITED MEMORIAL
GARDENS