Smith's Food and Drug Centers, Inc.

National Labor Relations Board - Board Decisions

May 6, 2020

369 N.L.R.B. 71 (N.L.R.B. 2020)

369 NLRB No. 71
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, Con-
fectionery, Tobacco Workers, and Grain Millers,
BCTGM Local #351, AFL–CIO–CLC. Case 28–
CA–247263
May 6, 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 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 August 28, 2019,
the General Counsel issued a complaint and notice of hear-
ing on January 29, 2020, against the Respondent, alleging
that it has violated Section 8(a)(5) and (1) of the Act. The
Respondent failed to file an answer.
On March 6, 2020, the General Counsel filed with the
National Labor Relations Board a Motion for Default
Judgment. Thereafter, on March 11, 2020, the Board is-
sued 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 allega-
tions 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 February 12, 2020, the Board
may find, pursuant to a motion for default judgment, that
the allegations in the complaint are true. Further, the un-
disputed allegations in the General Counsel’s motion dis-
close that the Region, by letter dated February 25, 2020,
advised the Respondent that unless an answer was re-
ceived by March 2, 2020, the Region may pursue a default
judgment. Nevertheless, the Respondent failed to file an
answer.
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
Motions to Transfer Case to and Continue Proceedings
Before the Board and 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 (the Respond-
ent’s facilities) and has been engaged in the retail sale of
groceries, meat, and related products. In conducting its
operations during the 12-month period ending August 27,
2019, the Respondent purchased and received at the Re-
spondent’s facilities goods valued in excess of $50,000 di-
rectly 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 has been a labor organiza-
tion 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 respective names and
have been supervisors of the Respondent within the mean-
ing of Section 2(11) of the Act and agents of the Respond-
ent within the meaning of Section 2(13) of the Act:
Elbert Cordova –Labor Relations Specialist
Cheryl Hedquist –Human Resources Manager
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 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
Mexico, store number 409 in Farmington, New Mexico,
store number 415 in Grants, New Mexico, store number
467 in Los Alamos, New Mexico, store number 414 in
Los Luna, New Mexico, store number 413 in Rio Ran-
cho, 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 employees, dry
goods employees, office clericals, janitors, guards,
watchmen, and supervisors as defined by the National
Labor Relations Act.
Since about 1980, and at all material times, the Union
has been the designated exclusive collective-bargaining
representative of the unit and, since then, the Union has
been recognized as the representative by the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
This recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of which is
effective from April 14, 2019, through April 11, 2021.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
On about July 17, 2019, the Union, in writing, requested
that the Respondent furnish the Union with the following
information:
(1) Proof of Brisa Vasquez’ current job classification;
(2) Proof of Brisa Vasquez’ current store location;
(3) Proof of Brisa Vasquez’ hire date;
(4) Proof of Rebecca Tafoya’s job classification on the
date of her termination (5/27/2019);
(5) Proof of Krystal Kennedy’s job classification on the
date of her termination (5/24/2019); and
(6) Proof of Charmaine Jacquez’ job classification of
the date of her termination (6/11/2019).
The information requested by the Union, as described
above, is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-bargain-
ing representative of the unit.
Since July 17, 2019, the Respondent has failed and re-
fused to provide the Union with the requested information.
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 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 provide the Union with re-
quested information that is necessary and relevant to the
Union's performance of its duties as the exclusive collec-
tive-bargaining representative of the unit employees, we
shall order the Respondent to provide the Union with the
information it requested since about July 17, 2019.
1 If the facilities involved in these proceedings are open and staffed
by a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facilities involved in
these proceedings are closed due to the Coronavirus pandemic, the
ORDER
The National Labor Relations Board orders that the Re-
spondent, Smith’s Food and Drug Centers, Inc., Albuquer-
que, Edgewood, Farmington, Grants, Las Alamos, Los
Lunas, Rio Rancho, Santa Fe, Socorro and Taos, New
Mexico, its officers, agents, successors, and assigns shall:
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Bakery, Confectionery, Tobacco Workers,
and Grain Millers, BCTGM Local #351, AFL–CIO–CLC
(the Union) as the exclusive collective-bargaining repre-
sentative of employees in the following unit, by failing
and refusing to provide it with the requested information
that is necessary and relevant to the Union’s performance
of its functions as the exclusive collective-bargaining rep-
resentative of the Respondent’s unit employees. The unit
is:
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
Mexico, store number 409 in Farmington, New Mexico,
store number 415 in Grants, New Mexico, store number
467 in Los Alamos, New Mexico, store number 414 in
Los Luna, New Mexico, store number 413 in Rio Ran-
cho, 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 employees, dry
goods employees, office clericals, janitors, guards,
watchmen, and supervisors as defined by the National
Labor Relations 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) Provide the Union, in a timely manner, with the in-
formation requested since July 17, 2019, to the extent that
it has not already done so.
(b) Post at its Albuquerque, Edgewood, Farmington,
Grants, Las Alamos, Los Lunas, Rio Rancho, Santa Fe,
Socorro and Taos, New Mexico facilities at which unit
employees are employed copies of the attached notice
marked “Appendix.”1 Copies of the notice, on forms pro-
vided by the Regional Director for Region 28, after being
notices must be posted within 14 days after the facilities reopen and a
substantial complement of employees have returned to work, and the no-
tices may not be posted until a substantial complement of employees
have returned to work. Any delay in the physical posting of the paper
SMITH’S FOOD AND DRUG CENTERS, INC. 3
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 physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable 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
facilities 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 em-
ployed by the Respondent at any time since July 17, 2019.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 7 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. May 6, 2020
______________________________________
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.
notices also applies to the electronic distribution of the notice if the Re-
spondent 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 “Mailed by Order of the
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 fail and refuse to bargain collectively and
in good faith with Bakery, Confectionery, Tobacco Work-
ers, and Grain Millers, BCTGM Local #351, AFL–CIO–
CLC (the Union) as the exclusive collective-bargaining
representative of employees in the following unit, by fail-
ing and refusing to provide it with the requested infor-
mation that is necessary and relevant to the Union’s per-
formance of its functions as the exclusive collective-bar-
gaining representative of the Respondent’s unit employ-
ees. The unit is:
All bakery managers, bakers, cake decorators, cake
icers, and cake finishers employed by us at our 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 Mexico,
store number 409 in Farmington, New Mexico, store
number 415 in Grants, New Mexico, store number 467
in Los Alamos, New Mexico, store number 414 in Los
Luna, New Mexico, store number 413 in Rio Rancho,
New Mexico, store number 491 at Santa Fe, New Mex-
ico, store number 499 in Socorro, New Mexico, and
store number 426 in Taos, New Mexico; excluding all
other grocery and meat department employees, dry
goods employees, office clericals, janitors, guards,
watchmen, and supervisors as defined by the National
Labor Relations Act.
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 provide the Union, in a timely manner, with
the information requested since July 17, 2019, to the ex-
tent that it has not already done so.
SMITH’SFOOD AND DRUGCENTERS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-247263 or by using the QR
code below. Alternatively, you can obtain a copy of the
National Labor Relations Board” shall read “Mailed 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 BOARD4
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.