Your Host, Inc.

National Labor Relations Board - Board Decisions

Oct 6, 1994

315 N.L.R.B. 295 (N.L.R.B. 1994)

295
315 NLRB No. 40
YOUR HOST, INC.
1 The General Counsel has excepted to the judge’s failure to find
that a fire on Sher-Del’s premises on about March 23, 1993, was
not the cause of its closing. The oven fire which occurred on that
date did not cause the entire Sher-Del facility to close. Rather, the
fire caused only the bakery operation to cease production a week
prior to the closing of the rest of the facility. We agree with the
General Counsel that by the time the fire occurred, the decision to
close Sher-Del had already been made, that the fire was not the
cause of the closing, and that the fire did not create exigent cir-
cumstances that excused the Respondents’ failure to provide the
Union with notice of closure and an opportunity to bargain over the
effects of the closing on unit employees. This conclusion is consist-
ent with, and implicit in, the judge’s finding, based on the credited
testimony of Richard May, that May decided on March 19 or 20,
1993, that he had no alternative but to close the business and file
a Chapter 7 bankruptcy petition.
1 The General Counsel’s unopposed motion to correct the record
is granted.
Your Host, Inc. and Hotel and Restaurant Employ-
ees Union Local 4, AFL–CIO
Sher-Del Foods, Inc. and Hotel and Restaurant Em-
ployees Union Local 4, AFL–CIO. Cases 3–CA–
17744 and 3–CA–17943
October 6, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On June 20, 1994, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The Re-
spondents filed exceptions and a supporting brief. The
General Counsel filed a cross-exception1 and support-
ing brief, and an answering brief to the Respondents’
exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Your Host, Inc., and Sher-
Del Foods, Inc., Buffalo, New York, their officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Rafael Aybar, Esq., for the General Counsel.
James R. Mayer, Esq., of Kenmore, New York, for the Debt-
or Corporation Respondents.
Mark S. Wallach, Esq. (Penney, Maier, Mandel, Wallach &
Crowe), of Buffalo, New York, for the Trustee in Bank-
ruptcy.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Buffalo, New York, on January 11, 1994.
The consolidated complaint alleges that Respondents Your
Host, Inc. (Your Host) and Sher-Del Foods, Inc. (Sher-Del),
in violation of Section 8(a)(1) and (5) of the Act, closed their
places of business and terminated all of the employees with-
out prior notice to and bargaining over effects with the
Union, and that Respondent Sher-Del failed to remit con-
tributions to the union funds. The Respondents deny that
they engaged in any violations of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the trustee in bankruptcy
in February, 1994, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Your Host, Inc., a corporation with its main office in Buf-
falo, New York, and other facilities throughout the Buffalo
area, is engaged in the operation of public restaurants. Your
Host annually derives gross revenues in excess of $500,000
and receives goods valued in excess of $5000 directly from
outside the State of New York. Sher-Del, Inc., a corporation
with a place of business in Buffalo, New York, is engaged
in the wholesale distribution of food. Sher-Del annually re-
ceives goods valued in excess of $50,000 directly from out-
side the State of New York. Respondents Your Host and
Sher-Del admit, and I find, that they are employers 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
A. The Facts
Richard J. May, the president of both Your Host, Inc. and
Sher-Del, is an agent and supervisor of both companies. May
testified that he has been associated with the Respondents for
many years; in 1983, he purchased the business. The Your
Host restaurants are a chain of family style restaurants in the
Buffalo area; at their peak of success, there were 39 separate
establishments. By the time Respondents filed for bankruptcy
on April 2, 1993, there were 11 Your Host restaurants re-
maining in business. All the meatcutting, preparation of gra-
vies, and furnishing of supplies for the Your Host restaurants
was performed by Sher-Del which functioned as a com-
missary and bakery for Your Host. Sher-Del also supplied
about 100 other establishments with food and supplies of
various kinds.
There is no dispute that both Your Host and Sher-Del rec-
ognized the Union as the exclusive collective-bargaining rep-
resentative of the employees of Your Host and Sher-Del in
the following unit:
296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Royal Knight, a restaurant, closed before the time relevant to the
instant proceeding and is not at issue herein.
3 Norstar had not previously taken any adverse action against Re-
spondent’s line of credit.
4 Taylor had a firm recollection of this conversation. I do not rely
on May’s testimony that he thinks he gave his lawyer’s number to
Taylor during this telephone call.
All employees employed by Respondent Your Host,
Inc. and Respondent Sher-Del; excluding so-called
managers, cashiers, and office employees employed in
the main office or offices of Respondent Your Host,
Inc. and Respondent Sher-Del.
There is no dispute that Your Host was party to a collec-
tive-bargaining agreement with the Union with a term from
June 11, 1989, to June 11, 1993. However, the answer filed
by the trustee in bankruptcy on behalf of Respondents denies
that Sher-Del was bound by the collective-bargaining agree-
ment. The contract in question is entitled ‘‘Collective Bar-
gaining Agreement between Your Host, Inc., Sher-Del, and
Royal Knight and Local 4.’’2 The signature page contains the
signature of the secretary-treasurer of Local 4 signing on be-
half of the Union, and the signature of Richard J. May, presi-
dent, signing on behalf of Your Host, Inc. There is no space
for any signature on behalf of Sher-Del or Royal Knight.
May, who is the president of both Your Host and Sher-Del,
testified that he executed the contract on behalf of both Your
Host and Sher-Del and that he understood that both Your
Host and Sher-Del were bound by its terms. May stated that
Sher-Del recognized the Union as the exclusive bargaining
representative of its employees, and that Sher-Del was re-
quired to make monthly contributions to the union health and
pension funds during the contract term. The evidence shows
that in March 1993, the Union brought a grievance relating
to the discharge of a truckdriver by Sher-Del and that the
matter was settled in a written document which identifies the
driver as an employee of Your Host. The only chief steward
appointed for all the employees was another truckdriver who
worked in the Sher-Del facility. I find that the identification
of May on the signature page of the contract as the president
of Your Host without any mention of Sher-Del was an over-
sight which had no legal consequences. It is beyond dispute
that Sher-Del considered itself bound to the collective-bar-
gaining agreement and to its terms. It is clear that Sher-Del
honored the contract, including the grievance provisions, and
that the employees of the various Your Host facilities and
Sher-Del were in a single bargaining unit for which the con-
tract set the terms and conditions of employment. I find that
Sher-Del was bound by the 1989–1993 collective-bargaining
agreement with the Union. Bi-County Beverage Distributors,
291 NLRB 466 (1988); Cauthorne Trucking, 256 NLRB 721
(1981); NLRB v. Operating Engineers Local 825, 315 F.2d
696, 699 (3d Cir. 1963).
May testified that Respondents had been experiencing fi-
nancial difficulties for a number of years, although some of
the individual restaurants were still profitable. May had trou-
ble paying the bills; he paid bills late and he tried to satisfy
those creditors who had the power to shut down the business
while making other creditors wait for their payments. The
1992–1993 winter holiday season should have been a profit-
able time of year for the Respondents, but the weather was
very bad and adversely affected patronage at the restaurants.
There were eight bad weekends in a row culminating in a
terrible snowstorm in March 1993, which not only kept pa-
trons away from the restaurants but also stranded employees
in the facilities and entitled the workers to double-time pay.
On March 19 or 20, May spoke to his corporate counsel and
to counsel experienced in bankruptcy matters, and May de-
cided that Respondents had no choice but to file for bank-
ruptcy pursuant to Chapter 7. Counsel informed May that
once he had decided on a Chapter 7 filing, Respondents were
forbidden from paying their creditors; May could only make
those payments necessary to keep the doors open until such
time as the business was closed. On March 29 and 30, 1993,
the Your Host restaurants and Sher-Del were closed.
May testified that both Your Host and Sher-Del owed
money to Norstar Bank which held mortgages and a security
interest in the equipment. The payroll account for Respond-
ents was in Norstar Bank and the bank had the right to set
off the payroll account against Respondents’ other indebted-
ness. May feared that if the bank learned that Respondents
intended to declare bankruptcy it would dishonor employee
paychecks. In consequence, May paid the employees in cash
for the last 2 weeks so that their paychecks would not
bounce.
May testified that he made the decision to close the facili-
ties. He did not inform the Union prior to closing and he did
not offer to bargain prior to closing over the effects which
shutting down Your Host and Sher-Del would have on bar-
gaining unit employees. May testified that he did not want
Norstar Bank to find out that he intended to declare bank-
ruptcy before he actually closed the facilities because he
feared that his account would be frozen.3 May also testified
that in a cash business, once a prospective closing is an-
nounced, then the cash disappears and the inventory dis-
appears. May stated that he did not want to accuse any em-
ployees of stealing and he could not think of any employee
in the recent past who had taken food or cash from Respond-
ents, but he said there was a danger that employees would
give away free meals if they knew their restaurant was about
to close.
Paul Taylor, the business representative for Local 4, testi-
fied that on March 29, 1993, a unit member telephoned him
and said her restaurant was being closed. Taylor tried to call
May, but he could not reach him. That evening, at a pre-
viously scheduled employee meeting, several employees told
Taylor that their facilities had closed that day. The employ-
ees wanted to know about the layoff, about their seniority
rights, and they expressed concern about their vacation enti-
tlements. On March 30, Taylor again tried to reach May by
telephone and left urgent messages for him. When May fi-
nally returned Taylor’s call, Taylor asked him, ‘‘are you or
are you not closing all these stores?’’ May replied that Tay-
lor should talk to his lawyers. Taylor repeated the question
two more times, but May only replied ‘‘talk to my lawyers,’’
and then he hung up. Taylor did not know who May’s law-
yers were and May did not tell him whom to call.4 Taylor
did not ask for the name of May’s lawyers. Later that day,
Taylor heard on the radio that all of Respondents’ facilities
were being closed. After the closings were effected and the
Union filed unfair labor practice charges, Respondents’ trust-
ee in bankruptcy, Mark L. Wallach, Esq., telephoned Taylor
297YOUR HOST, INC.
5 The collective-bargaining agreement does not provide for any
severance payments to employees.
6 These funds are identified in the collective-bargaining agreement
as the ‘‘Local 66 Insurance Fund’’ and the ‘‘Local 66 Pension
Fund.’’
7 Here the filing was not quite ‘‘immediate.’’ May decided to file
under Chapter 7 on March 19 or 20 and he did not close the facili-
ties until March 29 and 30, 1993.
8 The trustee’s reliance on former Chairman Dotson’s dissent in
Metropolitan Teletronics Corp., supra at 962, apparently seeks to
equate ‘‘meaningful’’ bargaining with the ability to obtain a sum of
money. The use of the term ‘‘meaningful,’’ however, relates to the
ability of the Union to retain some bargaining power. The exceptions
carved out by the Board excused the employers from giving notice
and bargaining before closing down only because the circumstances
were such that the employers had no time in which to negotiate be-
Continued
and they met to bargain on June 22, 1993. The Union’s pro-
posals consisted of a demand for severance pay according to
years of service, a demand for payment of unused vacation
pay due to employees prior to the closing, and recognition
in accordance with the contract. No agreement was reached.
Wallach testified that any transfers of funds made by Re-
spondents after March 19 and within 90 days before the
bankruptcy filing on April 2, 1993, would be subject to care-
ful scrutiny. As the trustee, if there were no good basis for
the commitments or transfers of funds, he would have
brought an action to set them aside pursuant to 11 U.S.C.
§ § 547 and 548. When a corporation whose assets are less
than its liabilities becomes insolvent, its managers have no
right to commit further assets to a newly created liability un-
less consideration is given to the corporation in return. Wal-
lach stated that if Respondents had agreed to any severance
payment with the Union which was not already required by
the collective-bargaining agreement, he would have moved to
set aside the severance agreement on the ground that there
was no consideration for the payment.5
There is no dispute that, without the Union’s consent,
Sher-Del did not make monthly contributions to the pension
fund and the health and welfare fund for the period begin-
ning in December 1992 through March 1993.6
B. Discussion and Conclusions
The facts clearly demonstrate that Respondents closed
their facilities without notice to the Union and without giving
the Union an opportunity to bargain over the effects of the
closings on the unit employees. May testified that he decided
to file for bankruptcy and close the business on March 19
or 20, 1993. The closings of the various facilities took place
on March 29 and 30. Respondents did not inform the Union
that the business was closing at any time between March 19
and March 30. This is a clear violation of Respondents’ duty
to bargain pursuant to Section 8(a)(5) of the Act. An em-
ployer’s bargaining with a union over the effects of its deci-
sion to close a business ‘‘must be conducted in a meaningful
manner and at a meaningful time.’’ First National Mainte-
nance Corp. v. NLRB, 452 U.S. 666, 682 (1981). The Board
has held that, ‘‘An element of ‘meaningful’ bargaining is
‘timely notice to the union’ of the decision. . . . By con-
cealing its decision from [the union] until after it began to
vacate [its closed] facility, the company failed to provide
timely notice, thus denying the union an opportunity to bar-
gain at a time when the union retained at least a measure of
bargaining power.’’ Metropolitan Teletronics, 279 NLRB
957, 959 (1987), enfd. 819 F.2d 1130 (1987). Here, as in the
cited case, Respondents concealed the decision to close until
the facilities were shut down and the workers were no longer
employed, thereby denying the Union an opportunity to bar-
gain when it might have retained a measure of bargaining
power. There is no doubt that the meeting held by the trustee
in bankruptcy with the Union on June 22, 1993, long after
the facilities had closed and the bankruptcy filing had taken
place, was insufficient to satisfy Respondents’ bargaining ob-
ligation under the Act. Nor is May’s testimony that in a cash
business the employees must always be kept in the dark
about a closing convincing on this point. May was unable to
recall any incident of theft by employees. Further, his conjec-
ture that employees would begin giving out free meals is un-
supported by any facts and is contrary to logic. First, Re-
spondents had supervisors and cashiers on their premises.
Second, if Respondents had bargained with the Union over
the effects of the closing and the employees had therefore
had a stake in the viability of the business, they would have
had an incentive to collect every penny owing to Respond-
ents in the days before the closing rather than giving the
money away as predicted by May. I am not persuaded by
May’s fear that Norstar Bank would freeze its accounts if it
learned of the potential closing. There is no support in the
record for drawing the conclusion that the bank would learn
of the impending bankruptcy if Respondents bargained over
effects of closure with the Union. May could certainly have
impressed on the Union the need for discretion in the cir-
cumstances. Further, May testified that the Norstar Bank had
never threatened to freeze Respondents’ bank accounts. I find
that Respondents were not operating under the exigent cir-
cumstances described in cases where the Board has held that
it was not a violation to fail to bargain over effects before
closing the business. See National Terminal Baking Co., 190
NLRB 465 (1971) (two trucks stolen in 1 week and no
money left with which to continue the business); M & M
Transportation Co., 239 NLRB 73, 75 (1978) (company
closed when it lacked funds to continue operation and lacked
money to pay employees); Raskin Packing Co., 246 NLRB
78 (1979) (company closed immediately when it lost the per-
formance bond required by statute and bank ended compa-
ny’s line of credit).
The trustee in bankruptcy here urges that in addition to the
emergencies heretofore recognized by the Board, the imme-
diate filing of a Chapter 7 bankruptcy petition should obviate
an employer’s duty to give notice and bargain prior to clo-
sure concerning the effects on employees of closing the busi-
ness because any such bargaining would be futile.7 The trust-
ee argues that there was no money to give the employees and
that the Bankruptcy Code would have prevented a monetary
settlement in any case. As to the argument relating to the im-
possibility of finding any money to fund the results of the
effects bargaining, I note that it is not the purpose of the Act
to insure that employees receive any set amount as a finan-
cial settlement from the effects bargaining, nor does the Act
require that the parties agree to any monetary compensation
as the result of good-faith effects bargaining. The Act re-
quires only that such bargaining take place.8 If there is in-
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fore closing, not because there was no money to distribute to the
employees through effects bargaining.
9 If May had given notice to the Union, perhaps some employees
would have left for other jobs or would have taken time off to look
for other jobs in the time between March 19 and 29.
10 I do not find that 11 U.S.C. § 108(b), cited by the trustee, is
applicable to the duty to bargain. That provision deals with filing
pleadings, demands, notices, and ‘‘similar acts.’’
11 Transmarine Navigation Corp., 170 NLRB 389 (1968). The
trustee misreads Transmarine by suggesting that the remedy there
established constitutes a penalty for failure to timely bargain with
the Union. The Board stated in that case that the purpose of the lim-
ited backpay requirement was ‘‘designed both to make whole the
employees for losses suffered as a result of the violation and to
recreate in some practicable manner a situation in which the parties’
bargaining position is not entirely devoid of economic consequences
for the Respondent.’’ The make-whole purpose is clearly compen-
deed no source to fund a financial settlement, then the parties
will presumably discuss that lack and act accordingly. How-
ever, in this case when the employer made the decision to
close, there were still sufficient funds to continue in busi-
ness. The restaurants and the commissary were open and
serving customers, and they stayed open for at least 10 days
after the decision to file under Chapter 7 was made. It is not
impossible that Respondents and the Union could have
agreed to some severance provision, however small. That the
Union still had some bargaining power is established by
May’s evident eagerness to keep his employees working and
collecting money at the facilities.9
The trustee’s major argument under the Bankruptcy Code
is that any agreement between Respondents and the Union
for severance pay would have been avoided and set aside be-
cause Respondents ‘‘received less than a reasonably equiva-
lent value in exchange for such . . . obligation.’’ 11 U.S.C.
§ 548(a)(2)(A). In other words, the trustee argues, there
would have been no fair consideration given by the Union
and the employees in return for severance pay. First, I note
that the Union, in the effects bargaining that took place with
the trustee on June 22, requested not only severance pay but
also payment of earned vacation pay. This vacation pay was
earned and accrued over the term of the contract before the
business closed down and therefore the lack of consideration
is not an issue with respect to vacation pay. Further, it is
contemplated that effects bargaining takes place at a mean-
ingful time when the union still has some bargaining power.
As set forth above, the union has some bargaining power be-
fore the business closes because the employer still wants and
needs the services of the employees. Therefore, the union is
able to give fair consideration for whatever settlement, in-
cluding a monetary settlement, it reaches with the employer.
The fact that the collective-bargaining agreement made no
provision for severance pay is not controlling: the Respond-
ents’ duty to bargain was a continuing one and the duty to
bargain over effects, including the duty to discuss with the
Union a demand for severance pay, was enforceable by the
Board. If effects bargaining had taken place when mandated,
it is not impossible that Respondents would have found that
it was fair to agree to severance pay in return for years of
service by the employees, including the task of orderly shut-
ting down the facilities. It is useless to speculate at greater
length concerning what the parties might have agreed to in
bargaining. Suffice it to say that a legally enforceable duty
to bargain over the effects of closing the business might have
produced an agreement and it is not a foregone conclusion
that that agreement would have been set aside under the
Bankruptcy Code. See 11 U.S.C. § 507(a)(3).10
The trustee’s brief concedes that Sher-Del has no defense
to its failure to make the required contributions to the health
and pension funds. I find that Sher-Del failed to remit con-
tributions to the insurance fund and the pension fund begin-
ning on December 30, 1992, and that this unilateral change
constituted a violation of Section 8(a)(5) and (1) of the Act.
Merryweather Optical Co., 240 NLRB 1213, 1215 (1979).
CONCLUSIONS OF LAW
1. The following employees of Respondent Your Host,
Inc. and Respondent Sher-Del Foods, Inc. constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act:
All employees employed by Respondent Your Host,
Inc. and Respondent Sher-Del; excluding so-called
managers, cashiers, and office employees employed in
the main office or offices of Respondent Your Host,
Inc. and Respondent Sher-Del.
2. At all times material, Hotel and Restaurant Employees
Union Local 4, AFL–CIO, has been the exclusive representa-
tive of all employees within the appropriate unit described
above for the purposes of collectivebargaining within the
meaning of Section 9(a) of the Act.
3. By failing to give prior notice and an opportunity to
bargain to the Union over the effects of closing their facili-
ties and terminating all of the employees, Respondents vio-
lated Section 8 (a) (5) and (1) of the Act.
4. By unilaterally failing to remit contributions to the
Local 66 Insurance Fund and the Local 66 Pension Fund
from December 30, 1992, Respondent Sher-Del violated Sec-
tion 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As a result of Respondents’ unlawful failure to bargain
about the effects of closing their facilities, the employees
have been denied an opportunity to bargain through their col-
lective-bargaining representative at a time when Respondents
were still in need of their services, and a measure of bal-
anced bargaining power existed. Meaningful bargaining can-
not be assured until some measure of economic strength is
restored to the Union. A bargaining order alone, therefore,
cannot serve as an adequate remedy for the unfair labor prac-
tice committed.
Accordingly, I shall recommend that, in order to effectuate
the purposes of the Act, Respondents bargain with the Union
concerning the effects on their employees of closing their fa-
cilities, and shall order a limited backpay requirement de-
signed both to make whole the employees for losses suffered
as a result of the violation and to recreate in some prac-
ticable manner a situation in which the parties’ bargaining is
not entirely devoid of economic consequences for Respond-
ents.11 The bargaining engaged in by the Union and the
299YOUR HOST, INC.
satory. Further, the imposition of economic consequences on the
company is not punitive but is designed to give the union a measure
of the bargaining power it lost when the business was closed.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 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.’’
trustee in June, 1993, does not satisfy the conditions under
this remedy section because there was no attempt to restore
some measure of economic strength to the Union. Thus, Re-
spondents shall pay the employees backpay at the rate of
their normal wages when last in Respondents’ employ from
5 days after the date of the Board’s Order until the occur-
rence of the earliest of the following conditions: (1) the date
Respondents bargain to agreement with the Union on those
subjects pertaining to the effects of the closing of Respond-
ents’ facilities on their employees; (2) a bona fide impasse
in bargaining; (3) the failure of the Union to request bargain-
ing within 5 days of the Board’s Order, or to commence ne-
gotiations within 5 days of Respondents’ notice of their de-
sire to bargain with the Union; or (4) the subsequent failure
of the Union to bargain in good faith; but in no event shall
the sum to any of these employees exceed the amount he or
she would have earned as wages from the date the facility
in which the employee worked was closed to the time he or
she secured equivalent employment elsewhere, or the date on
which Respondents shall have offered to bargain, whichever
occurs sooner; provided, however, that in no event shall this
sum be less than these employees would have earned for a
2-week period at the normal rate of their normal wages when
last in Respondents’ employ.
Backpay shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to
be computed in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Respondent Sher-Del Foods, Inc. must make whole its em-
ployees by transmitting to the Local 66 Insurance Fund and
the Local 66 Pension Fund the contributions required by the
collective-bargaining agreement which Respondent Sher-Del
Foods, Inc. unlawfully withheld, and Respondent Sher-Del
Foods, Inc. must make whole its employees by reimbursing
them for any losses ensuing from its unlawful failure to
make the contributions, with interest computed in the manner
prescribed by New Horizons for the Retarded, supra. See
Merryweather Optical Co., 240 NLRB 1213 (1979); Kraft
Plumbing & Heating, 252 NLRB 891 (1980).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondents, Your Host, Inc. and Sher-Del Foods,
Inc., their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to give prior notice and an opportunity to bar-
gain to the Union over the effects of closing their facilities
and terminating their employees.
(b) Failing to make contributions to the employees’ insur-
ance and pension funds (Respondent Sher-Del Foods, Inc.
only).
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union concerning the ef-
fects on the employees of closing their facilities and termi-
nating the employees and make whole the employees in the
manner set forth in the remedy section of this decision.
(b) Make whole its employees for its unlawful failure to
make contributions to the insurance and pension funds and
transmit the contributions to the insurance and pension funds
in the manner set forth in the remedy section of this decision
(Respondent Sher-Del Foods, Inc. only).
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Mail copies of the attached notice marked ‘‘Appen-
dix,’’13 to their employees. The copies shall be on forms pro-
vided by the Regional Director for Region 3 and shall be
signed by the Respondents’ authorized representative.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 the National Labor Relations Act and has ordered us
to mail and abide by this notice.
WE WILL NOT fail to give prior notice and an opportunity
to bargain to Hotel and Restaurant Employees Union Local
4, AFL–CIO over the effects of closing our facilities and ter-
minating our employees.
WE WILL NOT fail to make contributions to our employees’
insurance and pension funds (Sher-Del Foods, Inc., only).
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL on request bargain with Local 4 concerning the
effects on our employees in the following appropriate unit of
closing our facilities and terminating our employees and WE
WILL make whole our employees for the failure to bargain
in the manner set forth in the remedy section of the decision.
All employees employed by Respondent Your Host,
Inc. and Respondent Sher-Del; excluding so-called
managers, cashiers, and office employees employed in
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the main office or offices of Respondent Your Host,
Inc. and Respondent Sher-Del.
WE WILL make whole our employees for our failure to
make contributions to the insurance and pension funds (Sher-
Del Foods, Inc., only).
YOUR HOST, INC. AND SHER-DEL FOODS, INC.