Five Corner Produce LLC d/b/a Cross Island Fruits

National Labor Relations Board - Board Decisions

Jul 16, 2020

369 N.L.R.B. 122 (N.L.R.B. 2020)

369 NLRB No. 122
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.
Five Corner Produce LLC d/b/a Cross Island Fruits
and Local 2013, United Food and Commercial
Workers, AFL–CIO. Case 29–CA–257298
July 16, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that Five Corner Produce LLC d/b/a
Cross Island Fruits (the Respondent) has failed to file an
answer to the complaint. Upon a charge filed by Local
2013, United Food and Commercial Workers, AFL–CIO
(the Union), on February 28, 2020, the General Counsel
issued a complaint and notice of hearing on May 4, 2020,
against the Respondent, alleging that it has violated Sec-
tion 8(a)(5) and (1) of the Act. The Respondent failed to
file an answer.
On June 4, 2020, the General Counsel filed with the Na-
tional Labor Relations Board a Motion for Default Judg-
ment. Thereafter, on June 8, 2020, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be granted.
The Respondent filed no response. The allegations in the
motion are therefore undisputed.
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 May 18, 2020, the Board may
find, pursuant to a motion for default judgment, that the
allegations in the complaint are true. Further, the undis-
puted allegations in the General Counsel’s motion dis-
close that the Region, by letter and email dated May 20,
2020, advised the Respondent that unless an answer was
received by May 27, 2020, the Region may file a motion
for default judgment.
In the absence of good cause being shown for the failure
to file an answer, we deem the allegations in the complaint
to be admitted as true, and we grant the General Counsel’s
Motion for Default Judgment.
On the entire record, the Board makes the following
1 Continental Packaging Corp., 327 NLRB 400, 401 (1998), citing
Tropicana Products, 122 NLRB 121 (1958); see also Valentine Painting
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a domes-
tic corporation with an office and place of business located
at 246 Hempstead Ave., Lynbrook, New York (Lynbrook
facility), where it has been engaged in operating a retail
grocery store.
Annually, the Respondent, in the course and conduct of
its business operations described above, purchased and re-
ceived at its Lynbrook facility goods, products, and mate-
rials in a dollar amount that is more than de minimis from
suppliers located within the State of New York, said sup-
pliers meeting a Board direct test for the assertion of juris-
diction.
On April 15, 2020, investigative subpoena duces tecum
B-1-18YNMPN was served on the Respondent’s Custo-
dian of Records by email and regular mail, requiring and
directing the Respondent to produce, by April 24, 2020,
certain documents relevant to the Respondent’s annual
gross volume of business. Since April 24, 2020, the Re-
spondent has neither produced the documents required by
the subpoena duces tecum, nor filed a Petition to Revoke
the subpoena.
Under these circumstances, where the Respondent has
refused to provide information relevant to the Board’s ju-
risdictional determination, the General Counsel need only
prove statutory jurisdiction in order to establish a suffi-
cient basis for assertion of jurisdiction.1
Accordingly, we find that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 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 of its employees in all of its present and future loca-
tions within the New York Metropolitan area, excluding
employees continuously working less than thirty (30)
hours a week, supervisors, and guards as defined in the
National Labor Relations Act.
At all material times, the 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
and Wallcovering, 331 NLRB 883, 883–885 (2000), enfd. 8 F.App’x 116
(2d Cir. 2001).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
recent of which was effective from April 1, 2016, through
March 31, 2019.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
About the following dates, the Union, in writing, re-
quested that the Respondent bargain collectively for a suc-
cessor collective-bargaining agreement with the Union as
the exclusive collective-bargaining representative of the
unit:
(a) November 1, 2018; and
(b) December 18, 2019.
Since about December 18, 2019, the Respondent has
failed and refused to respond to the Union’s requests as
described above and has failed and refused to bargain a
successor collective-bargaining agreement with the Union
as the exclusive collective-bargaining representative of
the unit.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees in violation of Section 8(a)(5)
and (1) of the Act. The Respondent’s unfair labor prac-
tices described above affect commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an un-
derstanding is reached, to embody the understanding in a
signed agreement.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Five Corner Produce LLC d/b/a Cross Island
Fruits, Lynbrook, New York, its officers, agents, succes-
sors, and assigns shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Local 2013, United Food and Commercial
Workers, AFL–CIO (the Union) as the exclusive
2 If the facility involved in these proceedings is open and staffed by a
substantial complement of employees, the notices must be posted within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus pandemic, the notices must be
posted within 14 days after the facility reopens and a substantial comple-
ment of employees have returned to work, and the notices may not be
posted until a substantial complement of employees have returned to
work. Any delay in the physical posting of paper notices also applies to
collective-bargaining representative of the employees in
the bargaining unit.
(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) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All of its employees in all of its present and future loca-
tions within the New York Metropolitan area, excluding
employees continuously working less than thirty (30)
hours a week, supervisors, and guards as defined in the
National Labor Relations Act.
(b) Post at its facility in Lynbrook, New York, copies
of the attached notice marked “Appendix.”2 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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. Rea-
sonable steps shall be taken by the Respondent 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 current employees and former em-
ployees employed by the Respondent at any time since
about December 18, 2019.
(i) Within 21 days after service by the Region, file with
the Regional Director for Region 29 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. July 16, 2020
the electronic distribution of the notice if the Respondent customarily
communicates with its employees by electronic means. 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.”
FIVE CORNER PRODUCE LLC D/B/A CROSS ISLAND FRUITS 3
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, 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 vi-
olated 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 ac-
tivities.
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail and refuse to bargain collectively and
in good faith with Local 2013, United Food and Commer-
cial Workers, AFL–CIO (the Union) as the exclusive col-
lective-bargaining representative of our employees in the
bargaining unit.
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, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody that understanding in a signed agree-
ment:
All of our employees in all of our present and future lo-
cations within the New York Metropolitan area, exclud-
ing employees continuously working less than thirty
(30) hours a week, supervisors, and guards as defined in
the National Labor Relations Act.
FIVE CORNER PRODUCE LLC D/B/A CROSS
ISLAND FRUITS
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-257298 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 Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940
.
P.*