Smith's Food and Drug Centers, Inc.

National Labor Relations Board - Board Decisions

Dec 11, 2019

368 N.L.R.B. 127 (N.L.R.B. 2019)

368 NLRB No. 127
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.
Smith’s Food and Drug Centers, Inc. and Bakery
Workers and Grain Millers BCTGM Local #351,
AFL–CIO–CLC. Case 28–CA–235776
December 11, 2019
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 Smith’s Food and Drug Centers,
Inc. (the Respondent) has failed to file an answer to the
complaint. Upon a charge filed by Bakery, Confectionery,
Tobacco Workers and Grain Millers BCTGM Local #351,
AFL–CIO–CLC (the Union) on February 11, 2019,1 the
General Counsel issued a complaint on June 4 against the
Respondent, alleging that it has violated Section 8(a)(5)
and (1) of the National Labor Relations Act. The Re-
spondent failed to file an answer.
On July 2 and 3, respectively, the General Counsel filed
with the National Labor Relations Board a Motion for De-
fault Judgment and second Motion for Default Judgment.2
On July 3, the Board issued an order transferring the pro-
ceeding 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 un-
disputed.
The 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 states that unless
an answer was received by June 18, the Board may find,
pursuant to a motion for default judgment, that the allega-
tions in the complaint are true. Further, the undisputed
allegations in the General Counsel’s motion disclose that
the Region, by letter dated June 20, notified the Respond-
ent that unless an answer was received by June 28, a

1 Unless otherwise indicated, all the following dates are in 2019.
2 The General Counsel’s second motion attached two exhibits not in-
cluded in the original Motion but is otherwise essentially identical.
3 The motion for default judgment and attached exhibits indicate that
the Region served the complaint by certified mail on the Respondent at
its facility. Tracking information provided by the U.S. Postal Service
shows that the document was unclaimed. The Region sent the June 20
letter reminding the Respondent of its obligation to answer the complaint
by certified mail and emailed the letter to the Respondent’s labor
motion for default judgment would be filed. Nevertheless,
the Respondent failed to file an answer.3
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
second Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a corpo-
ration with offices and places of business in various loca-
tions throughout the State of New Mexico and has been
engaged in the retail sale of groceries, meat, and related
products.
In conducting its operations during the 12-month period
ending February 11, 2019, the Respondent purchased and
received at its facilities goods valued in excess of $50,000
directly from points outside the State of New Mexico, and
derived gross revenues in excess of $500,000.
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
1. At all material times, the following individuals held
the positions set forth opposite their names and have been
supervisors of the Respondent within the meaning of Sec-
tion 2(11) of the Act and agents of the Respondent within
the meaning of Section 2(13) of the Act:
Elbert Cordova Labor Relations Specialist
Cheryl Hedquist Human Resources Manager
2. (a) The following employees of the Respondent (the
unit) constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act:
All bakery managers, bakers, cake decorators, cake
icers, and cake finishers employed by Respondent at its
Store Numbers 423, 427, 432, 439, 443, 446, 448, 450,
459, 463, 485, 494, 496, 498, and 571 in Albuquerque,
New Mexico, Store Number 424 in Edgewood, New
relations specialist. U.S. Postal Service tracking information indicates
that the letter was delivered, and there is no indication that the Region’s
email to the Respondent’s labor relations specialist was undeliverable. It
is well settled that a respondent’s failure or refusal to accept certified
mail or to provide for receiving appropriate service cannot serve to defeat
the purposes of the Act. See Cray Construction Group, LLC, 341 NLRB
944, 944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB 247, 247 fn. 2
(2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Mexico, Store Number 409 in Farmington, New Mex-
ico, Store Number 415 in Grants, New Mexico, Store
Number 467 in Los Alamos, New Mexico, Store Num-
ber 414 in Los Luna, New Mexico, Store Number 413
in Rio Rancho, New Mexico, Store Number 491 at Santa
Fe, New Mexico, Store Number 499 in Socorro, New
Mexico, and Store Number 426 in Taos, New Mexico;
excluding all other grocery and meat department em-
ployees, dry goods employees, office clericals, janitors,
guards, watchmen, and supervisors as defined by the Na-
tional Labor Relations Act.
(b) Since about 1995, and at all material times, the Un-
ion has been the designated exclusive collective-bargain-
ing representative of the unit and, since then, the Union
has been recognized as the representative by the Respond-
ent. This recognition has been embodied in successive
collective-bargaining agreements, the most recent of
which was effective from April 11, 2015, through April
13, 2019.
(c) At all times since about 1995, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the unit.
3. (a) On about January 30, 2019, the Union, in writing,
requested that the Respondent furnish it with the following
information:
(1) Proof of seniority dates for all BCTGM members at
store #424;
(2) Proof of classification of all BCTGM members at
store #424;
(3) Proof of all disciplinary action issued to Diliah
Markey dating back to February 27, 2018;
(4) Proof of Diliah Markey’s inability to perform any of
the classifications covered in the collective-bargaining
agreement;
(5) Proof of all bakery schedules dating back to Febru-
ary 27, 2018;
(6) Proof of Diliah Markey’s offer to work in a different
classification;
(7) Proof of Diliah Markey’s refusal to work in a differ-
ent classification;

4 To the extent the request in par. 3(a)(10) encompasses witness state-
ments, we note that the concerns regarding the duty to disclose witness
statements articulated by then-Members Miscimarra and Johnson in their
dissenting opinions in Piedmont Gardens, 362 NLRB 1135, 1141–1151
(2015), enfd. on other grounds 858 F.3d 612 (D.C. Cir. 2017), warrant
(8) Proof of Diliah Markey’s action plan;
(9) Proof of adequate staffing to complete assigned
workload in the bakery department at store #424; and
(10) Proof of just cause for the discipline of Diliah
Markey on or about January 24, 2019 including proof of
all substantial evidence of guilt, proof of all investiga-
tory notes, proof of all investigative files, proof of all re-
ports, proof of all witness statements, proof of all photo-
graphs, proof of all audio or video footage, proof of all
correspondence, proof of all Company meeting minutes,
and proof of all Supervisor’s or Store Director’s notes.
(b) The information requested by the Union, as de-
scribed above, is necessary for, and relevant to, the Un-
ion’s performance of its duties as the exclusive collective-
bargaining representative of the unit.
(c) Since about January 30, 2019, the Respondent has
refused to provide the Union with the information re-
quested as described above in paragraphs 3(a)(1–9).
(d) From about January 30, 2019, until February 22,
2019, the Respondent unlawfully delayed in providing the
Union with the information requested as described above
in paragraph 3(a)(10).4
CONCLUSION OF LAW
By the conduct described above in paragraph 3, the Re-
spondent has been failing and refusing to bargain collec-
tively and in good faith with the exclusive collective-bar-
gaining representative of its employees in violation of
Section 8(a)(5) and (1) of the Act. The unfair labor prac-
tices of the Respondent described above affect commerce
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 and refusing to furnish the Union with requested
information that is relevant and necessary to its role as the
exclusive collective-bargaining representative of the unit
employees and by unlawfully delaying in providing the
Union with other such requested information, we shall or-
der the Respondent to furnish the Union with the infor-
mation it requested on about January 30, 2019, that has not
careful consideration in a future appropriate case. However, in the ab-
sence of any answer to the complaint or response to the Board’s Notice
to Show Cause, we find that the Respondent unlawfully delayed in
providing that information.
SMITH’S FOOD AND DRUG CENTERS, INC. 3
already been provided and is set forth above in paragraph
3(a)(1–9) of this decision.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Smith’s Food and Drug Centers, Inc., Albuquer-
que, New Mexico, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Bakery, Con-
fectionery, Tobacco Workers and Grain Millers BCTGM
Local #351, AFL–CIO–CLC by failing and refusing to
furnish it with requested information that is relevant and
necessary to the Union’s performance of its functions as
the collective-bargaining representative of the Respond-
ent’s unit employees.
(b) Refusing to bargain collectively with the Union by
unreasonably delaying in providing it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of the Respondent’s unit employees.
(c) 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) Furnish to the Union in a timely manner the infor-
mation it requested on January 30, 2019, that has not al-
ready been provided and is set forth above in paragraph
3(a)(1–9) of this decision.
(b) Within 14 days after service by the Region, post at
its facilities in various locations throughout the State of
New Mexico copies of the attached notice marked “Ap-
pendix.”5 Copies of the notice, on forms provided by the
Regional Director for Region 28, 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. In addition to phys-
ical 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 Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, 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

5 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
employees and former employees employed by the Re-
spondent at any time since January 30, 2019.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 28 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. December 11, 2019
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 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 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.
WE WILL NOT refuse to bargain collectively with Bak-
ery, Confectionery, Tobacco Workers and Grain Millers
BCTGM Local #351, AFL–CIO–CLC by failing and re-
fusing to furnish it with requested information that is rel-
evant and necessary to the performance of its functions as
the collective-bargaining representative of our unit em-
ployees.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL NOT refuse to bargain collectively with the Un-
ion by unreasonably delaying in providing it with re-
quested information that is relevant and necessary to the
performance of its functions as the collective-bargaining
representative of our unit employees.
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 furnish to the Union in a timely manner the
information it requested on January 30, 2019, that we have
not already provided.
SMITH’S FOOD AND DRUG CENTERS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-235776 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.