Metro Enterprises

National Labor Relations Board - Board Decisions

Jul 31, 2000

331 N.L.R.B. 112 (N.L.R.B. 2000)

331 NLRB No.112
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.
D & R Enterprises d/b/a Metro Enterprises and
United Food & Commercial Workers Union,
Local Union No. 1657 AFL–CIO & CLC. Case
15–CA–15745
July 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
BRAME
Upon a charge filed by the Union on March 13, 2000,
the General Counsel of the National Labor Relations
Board issued a complaint on April 13, 2000, against D &
R Enterprises d/b/a, Metro Enterprises, the Respondent,
alleging that it has violated Section 8(a)(1) and (5) of the
National Labor Relations Act. Although properly served
copies of the charge and complaint, the Respondent
failed to file an answer.
On June 27, 2000, the General Counsel filed a Motion
for Summary Judgment with the Board. On June 29,
2000, the Board issued an order transferring the proceed-
ing 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
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the 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 notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated April 28, 2000, notified the Respondent that
unless an answer were received by May 8, 2000, a Mo-
tion for Summary Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, has been a cor-
poration, with an office and place of business at Max-
well/Gunter United States Air Force Base in Montgom-
ery, Alabama, where it engaged in the operation of bar-
ber shops. During the 12-month period preceding the
issuance of the complaint, in conducting its operations,
the Respondent provided services valued in excess of
$50,000 within the State of Alabama for the Army and
Air Force Exchange Services, an enterprise directly en-
gaged in interstate commerce. We find that the Respon-
dent 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
The following employees of the Respondent (the unit),
constitute a unit appropriate for the purposes of collec-
tive-bargaining within the meaning of Section 9(b) of the
Act:

All barbers (excluding the base manager as well as
guards and supervisors, as those are defined in the Na-
tional Labor Relations Act) employed at the Com-
pany’s barbershops at Maxwell/Gunter Air Force Base.

At all material times since or about March 1, 1996, 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. This recognition has been embodied in col-
lective-bargaining agreements, the most recent of which
was effective from March 1, 1996 through March 1,
2001.1 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 September 1999, Respondent failed to continue
in effect all the terms and conditions of the agreement
described above, by failing and/or refusing: to pay con-
tractually required sick and accident benefits; to pay con-
tractually required eye and dental care benefits; to pay
contractually required legal assistance benefits; to remit
union dues deducted from bargaining unit employee
wages; and to pay wages earned by unit employees for
the period September 27, 1999 through October 8, 1999.
Respondent engaged in the conduct described without
the consent of the Union. The terms and conditions de-
scribed are mandatory subjects for the purpose of collec-
tive bargaining.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively with
the exclusive collective-bargaining representative of its
employees, and has thereby engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act.

1 Although the complaint refers to a “recognition agreement”, the
other complaint allegations suggest that this agreement is a collective-
bargaining agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
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 has violated Section 8(a)(1)
and (5) by failing since about September 1999, to con-
tinue in effect all the terms and conditions of the 1996–
2001 collective-bargaining agreement described above
by unilaterally failing and/or refusing to pay contractu-
ally required sick and accident benefits; to pay contractu-
ally required eye and dental care benefits; to pay contrac-
tually required legal assistance benefits; to remit union
dues deducted from bargaining unit employee wages; to
pay wages earned by bargaining unit employees for the
period September 27, 1999 through October 8, 1999, we
shall order the Respondent to comply with the terms and
conditions of the 1996–2001 collective-bargaining
agreement, to remit union dues deducted from bargaining
unit employee wages, and to pay the above-listed bene-
fits and wages, including any additional amounts appli-
cable to such delinquent payments as determined pursu-
ant to Merryweather Optical Co., 240 NLRB 1213, 1216
(1979), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent has violated Section
8(a)(1) and (5) by failing to maintain contractually re-
quired health and dental and legal assistance benefits for
its unit employees, we shall order the Respondent to re-
store the health, dental and legal assistance benefits and
make the employees whole by reimbursing them for any
expenses ensuing from the Respondent’s unlawful con-
duct, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), such amounts to be computed in the manner
set forth in Ogle Protection Service, 183 NLRB 632
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, supra.2
ORDER
The National Labor Relations Board orders that the
Respondent, D & R Enterprises d/b/a Metro Enterprises,
Maxwell/Gunter United States Air Force Base in Mont-
gomery, Alabama, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Unilaterally failing and/or refusing to continue in
effect all the terms and conditions of the 1996–2001 col-
lective-bargaining agreement with the Union by failing
and refusing: to pay contractually required sick and acci-

2 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Employer’s delin-
quent contributions during the period of delinquency, the Respondent
will reimburse the employees, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
dent benefits; to pay contractually required eye and den-
tal care benefits; to pay contractually required legal assis-
tance benefits; to remit union dues deducted from bar-
gaining unit employee wages; to pay wages earned by
bargaining unit employees for the period September 27,
1999 through October 8, 1999.
(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) Honor and abide by the terms of the 1996–2001
collective-bargaining agreement described above by pay-
ing contractually required sick and accident benefits;
paying contractually required eye and dental care bene-
fits; paying contractually required legal assistance bene-
fits; remitting union dues deducted from bargaining unit
employee wages; paying wages earned by bargaining
unit employees for the period September 27, 1999
through October 8, 1999.
(b) Make all unit employees and the Union whole,
with interest as set forth in the remedy section of this
decision, for any losses suffered as a result of the failure
and refusal: to pay sick and accident benefits; to pay eye
and dental care benefits; to pay legal assistance benefits;
to remit union dues deducted from bargaining unit em-
ployee wages; and to pay wages earned but not paid for
the period September 27, 1999 through October 8, 1999.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility at Maxwell/Gunter United States Air Force
Base in Montgomery, Alabama, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
METRO ENTERPRISES 3
to all current employees and former employees employed
by the Respondent at any time since September 1999.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. July 31, 2000

John C. Truesdale, Chairman

Sarah M. Fox, Member

J. Robert Brame III, 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

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT unilaterally fail and refuse to continue in
effect all the terms and conditions of our 1996–2001 col-
lective-bargaining agreement with the Union by failing
and/or refusing: to pay contractually required sick and
accident benefits; to pay contractually required eye and
dental care benefits; to pay contractually required legal
assistance benefits; to remit union dues deducted from
bargaining unit employee wages; to pay wages earned by
bargaining unit employees for the period September 27,
1999 through October 8, 1999.
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 honor and abide by the terms of our 1996–
2001 collective-bargaining agreement by: paying con-
tractually required sick and accident benefits; paying
contractually required eye and dental care benefits; pay-
ing contractually required legal assistance benefits; re-
mitting union dues deducted from bargaining unit em-
ployee wages; paying wages earned by bargaining unit
employees for the period September 27, 1999 through
October 8, 1999.
WE WILL make all unit employees and the Union
whole, with interest, for any losses suffered as a result of
our failure and/or refusal: to pay contractually required
sick and accident benefits; to pay contractually required
eye and dental care benefits; to pay contractually re-
quired legal assistance benefits; to remit union dues de-
ducted from bargaining unit employee wages; to pay
wages earned by bargaining unit employees for the pe-
riod September 27, 1999 through October 8, 1999.
D&R ENTERPRISES D/B/A METRO ENTERPRISES