Seneca Falls IGA

National Labor Relations Board - Board Decisions

Jul 31, 2007

350 N.L.R.B. 47 (N.L.R.B. 2007)

350 NLRB No. 47
Seneca Falls Foods, LLC d/b/a Seneca Falls IGA and
United Food and Commercial Workers, Local
1.1 Case 3–CA–26051
July 31, 2007
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has withdrawn its
answer to the complaint. Upon a charge and amended
charges filed by the Union on October 26 and December
6, 2006, and January 10, 2007, respectively, the General
Counsel issued the complaint on February 22, 2007
against Seneca Falls Foods, LLC d/b/a Seneca Falls IGA,
the Respondent, alleging that it has violated Section
8(a)(1) and (5) of the Act. Although the Respondent
filed an answer to the complaint, by letter dated April 26,
2007, the Respondent withdrew its answer.
On May 24, 2007, the General Counsel filed a Motion
for Default Judgment with the National Labor Relations
Board. On May 29, 2007, 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
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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides 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 stated
that unless an answer is filed by March 8, 2007, or post-
marked on or before March 7, 2007, all the allegations in
the complaint will be considered admitted. Although the
Respondent filed an answer to the complaint, it subse-
quently withdrew its answer. The withdrawal of an an-
swer has the same effect as a failure to file an answer,
i.e., the allegations in the complaint must be considered
to be true.2
Accordingly, we grant the General Counsel’s Motion
for Default Judgment.
On the entire record, the Board makes the following

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005.
2 See Maislin Transport, 274 NLRB 529 (1985).
FINDINGS OF FACT
I. JURISDICTION
At all material times, until on or about November 4,
2006, the Respondent, a limited liability company, with
an office located in Seneca Falls, New York (Respon-
dent’s Seneca Falls, New York facility), has been en-
gaged in the operation of a retail grocery store.
Annually, until on or about November 4, 2006, the Re-
spondent, in conducting its business operations described
above, derived gross revenues in excess of $500,000.
During the period of time described above, the Re-
spondent, in conducting its business operations described
above, purchased and received at its Seneca Falls, New
York facility products, goods, and materials valued in
excess of $5000 directly from points outside the State of
New York.
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 United Food and Commercial
Workers, Local 1, the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Michael J. Ward held the posi-
tion of owner and has been a supervisor of the Respon-
dent within the meaning of Section 2(11) of the Act and
an agent of the Respondent within the meaning of Sec-
tion 2(13) of the Act.
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 employees employed at 20 East Bayard Street, Se-
neca Falls, New York 13148, excluding the Owner,
one manager, two assistant managers, guards, profes-
sional employees and supervisors as defined in the Act,
as amended.
At all material times, the Union has been designated
exclusive collective-bargaining representative of the unit
and has been recognized as the representative by the Re-
spondent. This recognition has been embodied in a col-
lective-bargaining agreement effective from August 2,
2003 to August 2, 2006.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
Since about September 30, 2006, the Respondent
failed and refused to pay accrued vacation pay to unit
employees laid off on or about September 30, 2006.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Since about October 15, 2006, the Respondent failed
and refused to make contributions to the Union’s pension
and health/welfare funds on behalf of unit employees.
Since about November 4, 2006, the Respondent failed
to pay accrued vacation pay to unit employees laid off on
or about November 4, 2006.
On about November 4, 2006, the Respondent closed its
Seneca Falls, New York store.
Since about December 11, 2006, Respondent has failed
to bargain with the Union, as the exclusive bargaining
representative of the unit, regarding the effects of closing
the Respondent’s Seneca Falls, New York store.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to this conduct and the effects
of this conduct.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
with the exclusive collective-bargaining representative of
its employees, and has thereby engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (5) and 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 pay accrued vacation pay to
unit employees laid off on or about September 30 and
November 4, 2006, we shall order the Respondent to
make the unit employees whole for any loss of earnings
and other benefits attributable to its unlawful conduct.
Backpay shall be computed in accordance with 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).
In addition, having found that the Respondent has vio-
lated Section 8(a)(5) and (1) by failing and refusing to
make contributions to the Union’s pension and
health/welfare funds on behalf of unit employees, we
shall order the Respondent to make whole its unit em-
ployees by making all such delinquent contributions,
including any additional amounts due the funds in accor-
dance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979).3 We shall also order the Respondent
to reimburse unit employees for any expenses ensuing
from its failure to make the required contributions, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981), such amounts
to be computed in the manner set forth in Ogle Protec-
tion Service, supra, with interest as prescribed in New
Horizons for the Retarded, supra.
To remedy the Respondent’s unlawful failure to give
the Union prior notice of its decision to close its Seneca
Falls, New York facility and an opportunity to bargain
over the effects of the closure, we shall order the Re-
spondent to bargain with the Union, on request, concern-
ing the effects of that decision, and shall accompany our
order with a limited backpay requirement designed both
to make whole the employees for losses suffered as a
result of the violation and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Respon-
dent to pay backpay to the unit employees in a manner
similar to that required in Transmarine Navigation
Corp., 170 NLRB 389 (1968), as clarified by Melody
Toyota, 325 NLRB 846 (1998).4
Thus, the Respondent shall pay its laid-off employees
backpay at the rate of their normal wages when last in the
Respondent’s employ from 5 days after the date of this
Decision and Order until the occurrence of the earliest of
the following conditions: (1) the date the Respondent
bargains to agreement with the Union on those subjects
pertaining to the effects of its decision to close its Seneca
Falls, New York facility on its employees; (2) a bona
fide impasse in bargaining; (3) the Union’s failure to
request bargaining within 5 business days after receipt of
this Decision and Order, or to commence negotiations
within 5 business days after receipt of the Respondent’s
notice of its desire to bargain with the Union; or (4) the
Union’s subsequent failure to bargain in good faith; but
in no event shall the sum paid to these employees exceed
the amount they would have earned as wages from the
date on which the Respondent closed its facility, to the
time they secured equivalent employment elsewhere, or
the date on which the Respondent shall have offered to
bargain in good faith, whichever occurs sooner; pro-
vided, however, that in no event shall this sum be less

3 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
4 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
SENECA FALLS IGA 3
than the employees would have earned for a 2-week pe-
riod at the rate of their normal wages when last in the
Respondent’s employ. Backpay shall be based on earn-
ings which the laid-off employees would normally have
received during the applicable period, less any net in-
terim earnings, and shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as prescribed in New Horizons for the Retarded, su-
pra.
In view of the fact that the Respondent’s facility is cur-
rently closed, we shall order the Respondent to mail a
copy of the attached notice to the Union and to the last
known addresses of its former employees in order to in-
form them of the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Seneca Falls Foods, LLC d/b/a Seneca Falls
IGA, Seneca Falls, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Unilaterally failing and refusing to pay accrued va-
cation pay to unit employees laid off on or about Sep-
tember 30 and November 4, 2006.
(b) Unilaterally failing and refusing to make contribu-
tions to the Union’s pension and health/welfare funds on
behalf of the unit employees.
(c) Failing to bargain collectively with United Food
and Commercial Workers, Local 1, as the exclusive col-
lective-bargaining representative of the employees in the
following unit, by failing to give the Union prior notice
of its decision to close its Seneca Falls, New York facil-
ity, and an opportunity to bargain over the effects of that
decision on the employees in the unit. The unit is:
All employees employed at 20 East Bayard Street, Se-
neca Falls, New York 13148, excluding the Owner,
one manager, two assistant managers, guards, profes-
sional employees and supervisors as defined in the Act,
as amended.
(d) 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 collectively and in good faith
with the Union with respect to the effects on the unit
employees of its decision to close its Seneca Falls, New
York facility on November 4, 2006, and to lay off its unit
employees, and reduce to writing and sign any agreement
reached as a result of such bargaining.
(b) Pay to the laid-off unit employees their normal
wages for the period set forth in the remedy section of
this decision, with interest.
(c) Make all the required contributions to the Union’s
pension and health/welfare funds on behalf of the em-
ployees in the unit that have not been made since Octo-
ber 15, 2006, in the manner set forth in the remedy sec-
tion of this decision.
(d) Make whole the unit employees for any expenses
ensuing from the Respondent’s failure to make the re-
quired contributions, with interest, in the manner set
forth in the remedy section of this decision.
(e) Make whole the unit employees laid off on or about
September 30 and November 4, 2006, for any loss of
earnings and other benefits attributable to the Respon-
dent’s failure to pay accrued vacation pay, with interest,
in the manner set forth in the remedy section of this deci-
sion.
(f) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(g) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense, and after being signed
by the Respondent’s authorized representative, signed
and dated copies of the attached notice marked “Appen-
dix”5 to the Union and to all unit employees employed at
the Seneca Falls, New York facility on or after Septem-
ber 30, 2006.
(h) 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.

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 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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 mail 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
activities.
WE WILL NOT unilaterally fail and refuse to pay ac-
crued vacation pay to unit employees laid off on or about
September 30 and November 4, 2006.
WE WILL NOT unilaterally fail and refuse to make con-
tributions to the Union’s pension and health/welfare
funds on behalf of the unit employees.
WE WILL NOT fail to bargain collectively with United
Food and Commercial Workers, Local 1, as the exclusive
collective-bargaining representative of the employees in
the following unit, by failing to give the Union prior no-
tice of our decision to close our Seneca Falls, New York
facility, and an opportunity to bargain over the effects of
that decision on the employees in the unit. The unit is:
All employees employed at 20 East Bayard Street, Se-
neca Falls, New York 13148, excluding the Owner,
one manager, two assistant managers, guards, profes-
sional employees and supervisors as defined in the Act,
as amended.
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, on request, bargain collectively and in good
faith with the Union with respect to the effects on the
unit employees of our decision to close our Seneca Falls,
New York facility on November 4, 2006, and to lay off
the unit employees, and reduce to writing and sign any
agreement reached as a result of such bargaining.
WE WILL pay to the laid-off unit employees their nor-
mal wages for the period set forth in the Decision and
Order of the National Labor Relations Board, with inter-
est.
WE WILL make all the required contributions to the Un-
ion’s pension and health/welfare funds on behalf of the
employees in the unit that have not been made since Oc-
tober 15, 2006.
WE WILL make whole the unit employees for any ex-
penses ensuing from our failure to make the required
contributions, with interest.
WE WILL make whole the unit employees laid off on or
about September 30 and November 4, 2006, for any loss
of earnings and other benefits attributable to our failure
to pay accrued vacation pay, with interest.
SENECA FALLS FOODS, LLC D/B/A SENECA
FALLS IGA