Shore Paper Co.

SHORE PAPER CO. Shore Paper Company, Inc. and Highway Truck Drivers and Helpers, Local Union No. 107, affiliated with the International Brotherhood of Teamsters, AFL-CIO.¹ Case 4-CA-19794 December 31, 1991 DECISION AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH Upon a charge filed by the Union, Highway Truck Drivers and Helpers, Local Union No. 107, affiliated with the International Brotherhood of Teamsters, AFL-CIO on May 16, 1991, the General Counsel of the National Labor Relations Board issued a complaint on July 16, 1991, against Shore Paper Company, Inc., 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 has failed to file an answer. On September 30, 1991, the General Counsel filed a Motion for Summary Judgment. On October 7, 1991, 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 did not file a response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a threemember panel. Ruling on Motion for Summary 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. The complaint states that unless an answer is filed within 14 days of service, "all the allegations in the complaint shall be deemed to be admitted true and may be so found by the Board." In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a Pennsylvania corporation, is engaged in the sale and distribution of paper products at its facility in Folcroft, Pennsylvania, from which it annually purchased and received goods valued in excess of $50,000 directly from points outside of the Commonwealth of Pennsylvania. We find that the Respondent is an employer engaged in commerce within the meaning of Section 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 constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All drivers employed by the Respondent at its Folcroft, Pennsylvania facility, excluding all other employees, guards and supervisors as defined in the Act. At all times material, the Union and the Teamsters National Freight Industry Negotiating Committee (the Committee), have been designated as the exclusive collective-bargaining representative of the employees in the appropriate unit, and have been recognized as the representative by the Respondent. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective by its terms for the period of April 1, 1988, to March 31, 1991. At all times since 1988, the Union and the Committee, by virtue of Section 9(a) of the Act, have been and are the exclusive representative of the Respondent's unit employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. About February 15, 1991, the Respondent closed its Folcroft facility and laid off all employees in the unit, without prior notice to the Union and the Committee and without affording the Union and the Committee an opportunity to negotiate and bargain about the effects of the closing. The effects of ceasing operations relate to wages, hours, and other terms and conditions of employment and is a mandatory subject for the purposes of collective bargaining. The Respondent engaged in the acts and conduct described above without prior notice to the Union and Committee and without having afforded the Union and Committee a reasonable opportunity to negotiate and bargain as the exclusive representative of the Respondent's unit employees with respect to the effects of such acts and conduct. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(1) and (5) of the Act. 1 The name of the Charging Party has been changed to reflect the new official name of the International Union. 305 NLRB No. 160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW By failing and refusing to bargain collectively with the Union and the Committee over the effects of its decision to close its operations, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain 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. To remedy the Respondent's unlawful refusal to bargain about the effects of its decision to close its Folcroft, Pennsylvania facility, we shall order it to bargain with the Union and the Committee, on request, concerning the effects of its decision. We shall accompany the bargaining order with a limited backpay requirement designed to make whole the employees for losses sustained as a result of the violation, and to recreate in some practicable manner a situation in which the parties' bargaining positions are not entirely devoid of economic consequences for the Respondent. Therefore, we shall require the Respondent to pay backpay to its employees in a manner similar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968). We shall order the Respondent to pay 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 earliest of the following conditions: (1) the date the Respondent bargains to agreement with the Union and the Committee concerning the effects on unit employees of its decision to close its operations; (2) the parties reach a bona fide impasse in bargaining; (3) the Union and the Committee fail to request bargaining within 5 days of this Decision and Order, or to commence negotiations within 5 days of the Respondent's notice of its desire to bargain with the Union and the Committee; or (4) the Union and the Committee subsequently fail to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount the affected employee would have earned as wages from the date on which the Respondent terminated its operations to the time the employee was recalled or secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain, whichever occurs sooner; provided, however, that in no event shall this sum be less then these employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ. Interest on all such sums shall be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Finally, in view of the Respondent's closure of its operations, we shall provide for the mailing of notices to its employees. ORDER The National Labor Relations Board orders that the Respondent, Shore Paper Company, Inc., Folcroft, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Highway Truck Drivers and Helpers, Local Union No. 107, affiliated with the International Brotherhood of Teamsters, AFL-CIO, and the Teamsters National Freight Industry Negotiating Committee, about the effects of its decision to close its operations at its Folcroft, Pennsylvania facility, on the employees in the following appropriate unit: All drivers employed by the Respondent at its Folcroft, Pennsylvania facility, excluding all other employees, guards and supervisors as defined by the Act. (b) In any like or related manner interfering with, restraining, 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 with the Union and the Committee as the exclusive representative of its employees in the above-described unit about the effects of its decision to close its operations, and pay limited backpay to the unit employees in the manner set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the payments due under the terms of this Order. (c) Mail a copy of the attached notice marked "Appendix"2 to the Union and the Committee and to all unit employees who were employed at the Respondent's Folcroft, Pennsylvania facility at the time of closure. Copies of the Notice, on forms provided by the Regional Director for Region 4, 2 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 United States Court of Appeals Enforcing an Order of the National Labor Relations Board." SHORE PAPER CO. after being signed by the Respondent's authorized representative, shall be mailed to the Union and the Committee and to the employees by the Respondent immediately upon receipt. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Highway Truck Drivers and Helpers, Local Union No. 107, affiliated with the International Brotherhood of Teamsters, AFL-CIO and the Teamsters National Freight Industry Negotiating Committee, about the effects of our decision to close our operations in Folcroft, Pennsylvania, on our employees in the following appropriate unit: All drivers employed by the Respondent at its Folcroft, Pennsylvania facility, excluding all other employees, guards and supervisors as defined by the Act. 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 with the Union and the Committee about the effects on the unit employees of our decision to close the Folcroft, Pennsylvania operation, and WE WILL pay unit employees limited backpay as required by the National Labor Relations Board. SHORE PAPER COMPANY, INC.