Pabst Theater Foundation, Inc.

National Labor Relations Board - Board Decisions

May 13, 2010

355 NLRB No. 32 (N.L.R.B. 2010)

355 NLRB No. 32
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive 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.
Pabst Theater Foundation, Inc. and Milwaukee
Theatrical Stage Employees Union, Local #18 of
the International Alliance of Theatrical Stage
Employees, Moving Picture Technicians, Artists
and Allied Crafts of the United States, its
territories and Canada, AFL–CIO, CLC. Case
30–CA–18389
May 13, 2010
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
DECISION AND ORDER
On December 29, 2009, the National Labor Relations
Board issued an Order1 denying the General Counsel’s
Motion for Default Judgment on the ground that the
complaint failed to allege that Milwaukee Theatrical
Stage Employees Union, Local #18 of the International
Alliance of Theatrical Stage Employees, Moving Picture
Technicians, Artists and Allied Crafts of the United
States, its Territories and Canada, AFL–CIO, CLC (the
Union), is or had been the exclusive collective-
bargaining representative of the unit employees. The
Board concluded that, for purposes of that proceeding,
absent such an allegation, it could not find that Pabst
Theater Foundation, Inc. (the Respondent), violated the
Act as alleged by unduly delaying execution of a written
collective-bargaining agreement between the Respondent
and the Union. The Board further stated that
Nothing herein will require a hearing if, in the event of
an amendment to the complaint alleging that the Union
has been the exclusive collective-bargaining
representative during the relevant time period, the
Respondent again fails to answer, thereby admitting
evidence that would permit the Board to find the
alleged violation. In such circumstances, the General
Counsel may renew the motion for default judgment
with respect to the amended complaint allegations.2
Subsequently, on January 19, 2010, the General
Counsel issued an amendment to the complaint, alleging
that since at least April 2008, and at all material times,
the Union has been the designated exclusive collective-
bargaining representative of the unit employees; has been
recognized as the representative by the Respondent; and

1 354 NLRB No. 121. The General Counsel issued the complaint
and notice of hearing on September 18, 2009, upon a charge filed by
the Union on July 22, 2009.
2 Id., slip op. at 2.
has been the exclusive collective-bargaining
representative of the unit employees, based on Section
9(a) of the Act. The amendment to the complaint also
alleged that this recognition has been embodied in
successive collective-bargaining agreements, the most
recent of which was effective from April 1, 2009 to
March 31, 2010. The Respondent again failed to file an
answer.
Accordingly, on February 23, 2010, the General
Counsel filed a Renewed Motion for Default Judgment
with the Board. On March 5, 2010, the Board issued an
order transferring the proceeding 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 renewed motion are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Renewed 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 amendment to the complaint
affirmatively stated that unless an answer was filed on or
before February 2, 2010, all the allegations in the
amendment to the complaint may be found to be true,
pursuant to a motion for default judgment Further, the
undisputed allegations in the General Counsel’s motion
disclose that the Region, by letter dated February 5,
2010, notified the Respondent that unless an answer was
received by February 12, 2010, a renewed motion for
default judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Renewed 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,
has been engaged in the management and operation of a
facility for performing arts at its Milwaukee, Wisconsin
facility. During the 12-month period preceding issuance
of the complaint, the Respondent, in conducting its
operations described above, derived gross revenues in
excess of $1 million and purchased and received goods
and materials valued in excess of $5000 directly from
suppliers located outside the State of Wisconsin.
We find that at all material times, the Respondent has
been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that
PABST THEATER FOUNDATION, INC.2
the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Gary Witt has held the position
of executive director, and has been a supervisor of the
Respondent within the meaning of Section 2(11) of the
Act and an agent of the Respondent within the meaning
of Section 2(13) of the Act.
The employees of the Respondent, in the unit
described more particularly in article VII of the
collective-bargaining agreement in effect from April 1,
2009 to March 31, 2010, constitute a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
Since at least April 2008, and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit employees and since
that time 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 was effective from
April 1, 2009 to March 31, 2010. At all material times,
based on Section 9(a) of the Act, the Union has been the
exclusive collective-bargaining representative of the unit
employees.
About January 27, 2009, the Union and the
Respondent reached a complete agreement on the terms
and conditions of employment of the unit employees to
be incorporated in a collective-bargaining agreement.
About February 16, March 12, April 6 and 16, June 10,
17, and 18, 2009, the Union requested that the
Respondent execute a written contract containing the
agreement described above.
From about February 16 until September 2, 2009, the
Respondent, by Gary Witt, failed and refused to execute
the agreement described above and unduly delayed
execution of the written collective-bargaining agreement.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
failed and refused to bargain collectively and in good
faith with the Union in violation of Section 8(a)(5) and
(1) of the Act, and has thereby engaged in unfair labor
practices affecting commerce within the meaning of
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 designed
to effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) by failing and refusing, from about February 16
until September 2, 2009, to execute a written contract
that incorporates the terms of the collective-bargaining
agreement reached by the parties on about January 27,
2009, we shall order the Respondent to make the unit
employees whole for any loss of earnings and other
benefits they may have suffered as a result of the
Respondent’s undue delay in executing the collective-
bargaining agreement in the manner set forth in 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).
ORDER
The National Labor Relations Board orders that the
Respondent, Pabst Theater Foundation, Inc., Milwaukee,
Wisconsin, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Milwaukee Theatrical Stage Employees
Union, Local #18 of the International Alliance of
Theatrical Stage Employees, Moving Picture
Technicians, Artists and Allied Crafts of the United
States, its Territories and Canada, AFL–CIO, CLC, as
the exclusive collective-bargaining representative of the
unit employees by unduly delaying in executing a
collective-bargaining agreement reached with the Union.
(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) Give retroactive effect to the terms and conditions
of the collective-bargaining agreement reached by the
Respondent and the Union on January 27, 2009, and
make the unit employees whole for any loss of earnings
and other benefits they have suffered as a result of the
Respondent’s undue delay in executing the agreement,
with interest, as set forth in the remedy section of this
decision.
(b) 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
designated by the Board or its agents, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Within 14 days after service by the Region, post at
its facility in Milwaukee, Wisconsin, copies of the
PABST THEATER FOUNDATION, INC. 3
attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for
Region 30, after being signed by the Respondent’s
authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily 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 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
employees employed by the Respondent at any time
since January 27, 2009.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification 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. May 13, 2010
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
Craig Becker, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

3 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.”
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
benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with Milwaukee Theatrical Stage
Employees Union, Local #18 of the International
Alliance of Theatrical Stage Employees, Moving Picture
Technicians, Artists and Allied Crafts of the United
States, its Territories and Canada, AFL–CIO, CLC, as
the exclusive collective-bargaining representative of the
unit employees by unduly delaying in executing a
collective-bargaining agreement reached with the Union.
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 give retroactive effect to the terms and
conditions of the collective-bargaining agreement
reached by us and the Union on January 27, 2009, and
WE WILL make you whole for any loss of earnings and
other benefits you may have suffered as a result of our
undue delay in executing the agreement, with interest.
PABST THEATER FOUNDATION, INC.