Urban Laboratories, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 515 (N.L.R.B. 1981)

URBAN LABORATORIES, INCORPORATED
Urban Laboratories, Incorporated and Hotel and
Restaurant Employees and Bartenders Union of
San Diego, Local 30, AFL-CIO. Cases 21-CA-
18910 and 21-CA-19213
January 14, 1981
DECISION AND ORDER
BY MEMBERS PENELLO, TRUESDALE, AND
ZIMMERMAN
Upon a charge filed on April 7, 1980, and an
amended charged filed on April 24, 1980, in Case
21-CA-18910 by Hotel and Restaurant Employees
and Bartenders Union of San Diego, Local 30,
AFL-CIO, herein called the Union, and duly
served on Urban Laboratories, Incorporated,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 21, issued a complaint
on May 22, 1980, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. On May 30, 1980, Respondent filed its
answer to the complaint.
Thereafter, on June 27, 1980, the Union filed a
charge in Case 21-CA-19213 alleging that Respon-
dent had engaged in and was engaging in certain
unfair labor practices. On August 4, 1980, the Re-
gional Director issued an Order consolidating
cases, consolidated amended complaint, and amend-
ed notice of hearing in Cases 21-CA-19810 and
21-CA-19213 alleging that Respondent had en-
gaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Specifical-
ly, the consolidated amended complaint alleges that
Respondent has violated Section 8(a)(5) and (1) of
the Act: (a) by refusing to remit union dues with-
held pursuant to employees' voluntary authoriza-
tions as required by a contract between Respon-
dent and the Union; (b) by refusing to make regu-
lar payments into the appropriate health and wel-
fare funds as required by the parties' contract; and
(c) by refusing to meet and confer with the Union
regarding grievances as required by the parties'
contract. Respondent filed no answer to the con-
solidated amended complaint.
On October 9, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment based on Respondent's failure
to file an answer to the consolidated amended com-
plaint. Subsequently, on October 16, 1980, the
Board issued an order transferring the proceeding
254 NLRB No. 61
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent has not
filed a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint if no answer if
filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause is
shown to the contrary.
As noted above, Respondent filed an answer to
the original complaint in Case 21-CA-18910 but
has filed no answer to the consolidated amended
complaint in Cases 21-CA-18910 and 21-CA-
19213. That later complaint supplanted the earlier
issued complaint and called for specific response to
all of its allegations although Respondent had
failed to file any such response.
In his Motion for Summary Judgment, General
Counsel asserts that a copy of the original charge
in Case 21-CA-19213 was duly served on Respon-
dent. Thereafter, a copy of the order consolidating
cases, consolidated amended complaint, and amend-
ed notice of hearing in Cases 21-CA-18910 and
21-CA-19213 was sent by certified mail, return re-
ceipt requested, to Respondent's Tacoma, Washing-
ton, address, an address at which Respondent had
previously received mail during the proceeding
connected with the charge and complaint in Case
21-CA-18910. The envelope containing that order
and consolidated amended complaint was returned,
having been marked "unclaimed" by the postal ser-
vice on August 25, 1980.
However, on August 20, 1980, Regional Field
Examiner Steven J. Sorenson posted, by certified
515
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
mail, return receipt requested, a letter to Arshield
Holland, a local agent for Respondent.' Sorenson's
letter confirmed their telephone conversation of
that day during which Sorenson had informed Hol-
land that Region 21 had still not received an
answer to the consolidated amended complaint.
Sorenson indicated in that letter that he had first
attempted to contact Respondent at its Tacoma,
Washington, location but had been informed by a
taped message that the phone number had been dis-
connected and that there was no new number. Sor-
enson's letter also confirmed his comment to Hol-
land that, if an answer were not filed by August
29, 1980, Sorenson would recommend to the Re-
gional Director that summary judgment be sought.
On the same date, Sorenson posted, by certified
mail, return receipt requested, a copy of this letter
to Respondent at its Tacoma, Washington, head-
quarters. Both the letter addressed to Holland and
the letter addressed to Respondent at Tacoma,
Washington, were returned to General Counsel by
the postal service on September 6 and 7, 1980, re-
spectively. Both letters were marked "unclaimed."
No answer or a request for an extension to file
such answer has been received from Respondent.
The original complaint and notice of hearing in
Case 21-CA-18910, which was admittedly served
on Respondent, specifically stated that unless an
answer was filed to the complaint within 10 days
of service thereof "all of the allegations in said
complaint shall be deemed to be admitted to be
true and may be so found by the Board." This ad-
monition is in accord with the Board's Rules and
Regulations, supra, and, in fact, Respondent timely
responded to it by filing an answer to that com-
plaint. The same admonition was included in the
later Order consolidating cases, consolidated
amended complaint, and amended notice of hearing
to which Respondent has not filed an answer not-
withstanding the Region's attempts to formally
serve it and notwithstanding that an agent of Re-
spondent was specifically informed that should Re-
spondent fail to file an answer summary judgment
might be sought. In these circumstances, we find
that Respondent was on adequate notice of the
consequences of a failure to file an answer to the
consolidated amended complaint. Respondent.
however, has failed to file an answer or present
good cause for failing to do so. No good cause for
failure to file an answer having been shown, in ac-
cordance with the rule set forth above, the allega-
tions of the complaint are deemed admitted to be
true. Accordingly, we find as true all the allega-
i' olland had arliwr signed for the receipt ofl the charge in Case 21
CA- I213 at a San Diego, California, location of Respondent
tions of the complaint and grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a State of Washington corporation
engaged in the operation and management of food
service facilities for the armed services of the
United States, and operates a facility located at the
United States Navy's 32d Street Naval Station
Annex located in San Diego, California. In the
course and conduct of its business, Respondent
provides services valued in excess of $50,000 to the
United States Navy.
The complaint alleges and we find that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert ju-
risdiction herein.
II. THE ABOR ORGANIZATION INVOLVED
Hotel and Restaurant Employees and Bartenders
Union of San Diego, Local 30, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
II1. THE UNFAIR LABOR PRACTICES
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All non-management food service employees
employed by Respondent at the 32d Street
Naval Station Annex; excluding office clerical
employees, guards and supervisors as defined
in the Act.
The Union has been the collective-bargaining rep-
resentative of these employees since May 19, 1978,
and Respondent and the Union executed a collec-
tive-bargaining agreement covering these employ-
ees on November 10, 1978, which was effective
from October 1, 1978, until October 1, 1980. Since
in or about January 1980, however, Respondent
has failed and refused, and continues to fail and
refuse, to remit union dues withheld pursuant to
employees' voluntary authorizations as required by
the terms of the collective-bargaining agreement.
Also, since in or about March 1980, Respondent
has failed and refused to make regular payments
into the appropriate health and welfare funds as re-
quired by the terms of the collective-bargaining
516
URBAN LABO()RATORIES. INCORPORATFI)
agreement. And, since on or about June 15, 1980,
Respondent has failed and refused, and continues
to fail and refuse, to meet and confer with the
Union regarding grievances as required by the
terms of the collective-bargaining agreement. Re-
spondent has undertaken all these actions, or lack
thereof, without giving notice to, or bargaining
with, the Union.
By each of the actions taken in January, March,
and June, 1980, we find that Respondent failed and
refused to bargain in good faith with the Union in
violation of Section 8(a)(5) and (1) of the Act and
thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and
(7) of the Act.
IV. THE EFFECT OF THE UNFAIR L.ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
We have found that Respondent failed to remit
to the Union the dues it had withheld from em-
ployees' paychecks, failed to make the required
contributions to the Union's health and welfare
funds, and failed to meet and confer with the
Union regarding grievances, which conduct consti-
tutes a refusal to bargain in violation of Section
8(a)(5) and (1) of the Act. In order to dissipate the
effect of these unfair labor practices, we shall order
Respondent to remit to the Union the dues it with-
held from its employees' paychecks, with interest
on the dues to be computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977),2 transmit to the Union the required contri-
butions to the Union's health and welfare fund,3
and, upon request, to meet and confer with the
Union regarding grievances.
2 See, generalls, lvis Plumbing & Heating Co., 138 NI.RB 716 (1962h
3 Because the provisions of employee benefit fund agreements are ari-
able and complex. the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unilassfull
withheld fund payments We lease to the compliance stage the questilon
of whether Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy. Ihese additional
amounts may he determined depending upon the ircumstances of ealch
case, by reference to provisions in the documents governing the fundls ia
issue and. where there are no governing provisions, to evidence of ai
loss directly attributable to the unlasful itlhholding action, s hich iiight
include the loss of return on investmenli of the portion of the ifunds (s ih
held, additional administrative costs, etc, but not collateral losses
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI USIONS OF LAW
1. Urban Laboratories, Incorporated, is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Hotel and Restaurant Employees and Bartend-
ers Union of San Diego, Local 30, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All nonmanagement food service employees
employed by Respondent at the 32d Street Naval
Station Annex, excluding office clerical employees,
guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since May 19, 1978, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of col-
lective bargaining within the meaning of Section
9(a) of the Act and Respondent and the Union
have had a collective-bargaining agreement effec-
tive until October 1, 1980.
5. By failing and refusing to remit union dues
withheld pursuant to employees' voluntary authori-
zations as required by the terms of the collective-
bargaining agreement, by failing and refusing to
make regular payments into the appropriate health
and welfare funds as required by the terms of the
collective-bargaining agreement, and by failing and
refusing to meet and confer with the Union regard-
ing grievances as required by the terms of the col-
lective-bargaining agreement, Respondent has re-
fused to bargain collectively with the Union in vio-
lation of Section 8(a)(5) of the Act, and has re-
strained and coerced employees in the exercise of
their Section 7 rights within the meaning of Sec-
tion 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Urban Laboratories, Incorporated, San Diego,
California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Hotel and Restau-
517
DECISIONS OF NAr1ONAL LABOR RELATIONS BOARD
rant Employees and Bartenders' Union of San
Diego, Local 30, AFL-CIO, as the exclusive bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All non-management food service employees
employed by Respondent at the 32d Street
Naval Station Annex; excluding office clerical
employees, guards and supervisors as defined
in the Act.
(b) Refusing to remit union dues withheld pursu-
ant to employees' voluntary authorizations as re-
quired by the terms of the collective-bargaining
agreement.
(c) Refusing to make regular payments into the
appropriate health and walfare funds as required by
the terms of the collective-bargaining agreement.
(d) Refusing to meet and confer with the Union
regarding grievances as required by the terms of
the collective-bargaining agreement.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Remit to the Union the dues withheld pursu-
ant to employees' voluntary authorizations as re-
quired by the terms of the collective-bargaining
agreement, plus interest, as set forth in the section
of this Decision entitled "The Remedy."
(c) Make whole its employees in the manner set
forth in the section of this Decision entitled "The
Remedy" for Respondent's unlawful failure to
transmit the contributions to the Union's health and
welfare fund as required by the terms of the collec-
tive-bargaining agreement.
(d) Upon request, meet and confer with the
Union regarding grievances as required by the
terms of the collective-bargaining agreement.
(e) Post at its 32d Street Station Annex, San
Diego, California, facility copies of the attached
notice marked "Appendix." 4 Copies of said notice,
on forms provided by the Regional Director for
I In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Region 21, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Hotel and Restaurant Employees and
Bartenders Union of San Diego, Local 30,
AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT refuse to remit union dues
withheld pursuant to employees' voluntary au-
thorizations as required by the terms of the
collective-bargaining agreement.
WE WILL NOT refuse to make regular pay-
ments into the appropriate health and welfare
funds as required by the terms of the collec-
tive-bargaining agreement.
WE WILL NOT refuse to meet and confer
with the Union regarding grievances as re-
quired by the terms of the collective-bargain-
ing agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL remit to the Union the dues with-
held pursuant to employees' voluntary authori-
zations as required by the terms of the collec-
tive-bargaining agreement, with interest for the
dues we withheld.
WE WILL make regular payments into the
appropriate health and welfare funds as re-
quired by the terms of the collective-bargain-
ing agreement and make whole our employees
by transmitting to the Union health and wel-
fare fund those contributions unlawfully with-
held.
518
URBAN LABORATORIES, INCORPORATED
WE WILL, upon request, meet and confer
with the Union regarding grievances as re-
quired by the terms of the collective-bargain-
ing agreement.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions
of employment, and, if an understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All non-management food service employees
employed by the Employer Respondent at
the 32d Street Naval Station Annex; exclud-
ing office clerical employees, guards and su-
pervisors as defined in the Act.
URBAN LABORATORIES, INCORPORAT-
ED
519