Rosedale Fabricators, LLC

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 508 Rosedale Fabricators, LLC and United Steelworkers of America, Local Union No. 250, AFL–CIO, CLC. Case 26–CA–21187 September 30, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH The General Counsel seeks a default judgment1 in this case on the ground that the Respondent has failed to file an answer to the consolidated complaint and compliance specification. On a charge and an amended charge filed by the Union on April 21 and May 9, 2003, respectively, the General Counsel issued the consolidated complaint and compliance specification on June 30, 2003, against Rosedale Fabricators, LLC (Respondent), alleging that it has violated Section 8(a)(1) and (5) of the Act. The Re- spondent failed to file an answer. On August 22, 2003, the General Counsel filed a Mo- tion for Summary Judgment with the Board. On August 28, 2003, the Board issued an order transferring the pro- ceeding 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. Similarly, Section 102.56 of the Board’s Rules and Regulations provides that the allegations in a compli- ance specification will be taken as true if an answer is not filed within 21 days from service of the compliance speci- fication. In addition, the consolidated complaint and compliance specification affirmatively stated that unless an answer was filed by July 21, 2003, all the allegations in the consolidated complaint and compliance specifica- tion could be considered admitted. Further, the undis- puted allegations in the General Counsel’s motion dis- close that the Region, by letter dated August 14, 2003, notified the Respondent’s attorney in bankruptcy, Craig M. Geno, that unless an answer was received by August 18, 2003, a Motion for Default Judgment would be filed.2 1 The General Counsel’s motion requests summary judgment on the ground that the Respondent has failed to file an answer to the consoli- dated complaint and compliance specification. Accordingly, we con- strue the General Counsel’s motion as a motion for default judgment. 2 The General Counsel’s motion indicates that the Respondent has filed a petition for bankruptcy. It is well established that the institution Nevertheless, the Respondent did not file an answer to the consolidated complaint and compliance specification. 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 Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Mississippi limited liability company with an office and place of business in Rosedale, Mississippi, has been engaged in the manufacture of cabinets. During the 12-month pe- riod ending December 31, 2002, the Respondent, in con- ducting its business operations described above, sold and shipped from its Rosedale, Mississippi facility goods valued in excess of $50,000 directly to points located outside the State of Mississippi. We find that the Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that United Steelworkers of America, Local Union No. 250, AFL–CIO, CLC (Union), is a labor organization 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 names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: James L. Perry Owner Sylvester Jackson Supervisor 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 production and maintenance employees including truck drivers, lead persons, and regular part-time em- ployees employed at Respondent’s Rosedale, Missis- sippi plant, excluding all office clerical employees, shipping clerks, professional employees, technical em- ployees, tool makers, apprentice tool makers, drafts- man-chemist, and mold-maker, guards, foremen, assis- tant foremen, and supervisors as defined by the Act. of bankruptcy proceedings does not deprive the Board of jurisdiction or authority to entertain and process an unfair labor practice case to its final disposition. See, e.g., Cardinal Services, 295 NLRB 933 fn. 2 (1989), and cases cited there. Board proceedings fall within the excep- tion to the automatic stay provisions for proceedings by a governmental unit to enforce its police or regulatory powers. See id; NLRB v. 15th Avenue Iron Works, 964 F.2d 1336, 1337 (2d Cir. 1992). Accord: Aherns Aircraft, Inc. v. NLRB, 703 F.2d 23 (1st Cir. 1983). 340 NLRB No. 67 ROSEDALE FABRICATORS, LLC 509 Since about December 16, 1974, and at all material times, the Union has been the designated exclusive col- lective-bargaining representative of the unit and since then has been recognized as the representative by the Respondent. This recognition has been embodied in suc- cessive collective-bargaining agreements, the most recent of which is effective from March 5, 2002, through July 30, 2005. At all times since about December 16, 1974, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. In about November 2002, the Respondent closed its business operations and terminated the employment of all unit employees. The subject set forth above relates to wages, hours, and other terms and conditions of employment of the unit and is a mandatory subject for the purposes of collective bar- gaining. 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 the effects of this conduct. CONCLUSION OF LAW By failing to notify the Union of its decision to close its Rosedale facility, and by failing to give the Union an opportunity to bargain over the effects of that decision, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) 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. To remedy the Respondent’s unlawful failure and re- fusal to notify and bargain with the Union about the ef- fects of the Respondent’s decision to close its Rosedale facility, we shall order the Respondent to bargain with the Union, on request, about the effects of that decision. Be- cause of the Respondent’s unlawful conduct, however, the terminated unit employees have been denied an opportu- nity to bargain through their representative at a time when the Respondent might still have been in need of their ser- vices and a measure of balanced bargaining power ex- isted. Meaningful bargaining cannot be assured until some measure of bargaining power is restored to the Un- ion. A bargaining order alone, therefore, is not an ade- quate remedy for the unfair labor practices committed. Accordingly, we deem it necessary, in order to ensure that meaningful bargaining occurs and to effectuate the policies of the Act, to accompany our Order with a lim- ited backpay requirement designed both to offset some of the losses suffered by the employees as a result of the violations and to recreate in some practicable manner a situation in which the parties’ bargaining position is not entirely devoid of economic consequences for the Re- spondent. We shall do so by ordering the Respondent to pay backpay to the terminated unit employees in a man- ner similar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968), as clarified in Melody Toyota, 325 NLRB 846 (1998). Pursuant to Transmarine, the Respondent normally would be required to pay its terminated unit 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 occurrence of the earliest of the following conditions: (1) the Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the closing of the Rosedale facility on unit employees; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 busi- ness days after receipt of this Decision and Order, or to commence negotiations within 5 days after receipt of the Respondent’s notice of its desire to bargain with the Un- ion; or (4) the Union’s subsequent failure to bargain in good faith. Transmarine provides that the sum paid to any em- ployee may not exceed the amount the employee would have earned as wages from the date on which the Re- spondent terminated its operations, to the time the em- ployee secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bar- gain in good faith, whichever occurs sooner. But, Trans- marine further provides that the sum paid to any em- ployee shall not be less than the employee would have earned for a 2-week period at the rate of his normal wages when last in the Respondent’s employ. Backpay for these purposes is typically based on earnings which the termi- nated unit employees would normally have received dur- ing the applicable period, less any interim earnings, and is computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Here, in view of the Respondent’s bankruptcy and ces- sation of operations, the General Counsel, in the compli- ance specification seeks only the minimum 2 weeks of backpay due the terminated unit employees under Transmarine. Appendix A to the compliance specifica- tion sets forth the amount due each employee based on 40 hours of work per week. We shall grant the General Counsel’s request and order the Respondent to pay the employees the amounts shown in Appendix A to the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 510 compliance specification, with interest as prescribed in New Horizons for the Retarded, supra. Further, in view of the fact that the Rosedale facility is currently closed, we shall order the Respondent to mail a copy of the attached notice to the Union and to the last known addresses of the unit employees, in order to in- form them of the outcome of this proceeding. ORDER The National Labor Relations Board orders that the Respondent, Rosedale Fabricators, LLC, Rosedale, Mis- sissippi, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing to give United Steelworkers of America, Local Union No. 250, AFL–CIO, CLC, prior notice of its decision to close its Rosedale facility and an opportunity to bargain over the effects of that decision on the unit employees. The unit consists of the following employees: All production and maintenance employees including truck drivers, lead persons, and regular part-time em- ployees employed at Respondent’s Rosedale, Missis- sippi plant, excluding all office clerical employees, shipping clerks, professional employees, technical em- ployees, tool makers, apprentice tool makers, drafts- man-chemist, and mold-maker, guards, foremen, assis- tant foremen, and supervisors as defined by the 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) On request, bargain with the Union over the effects on unit employees of its decision to close the Rosedale facility, and reduce to writing and sign any agreement reached as a result of such bargaining. (b) Make whole the individuals named in the compli- ance specification by paying them the amounts specified therein, with interest as prescribed in New Horizons for the Retarded, supra, minus tax withholdings required by Federal and State laws. The total amount set forth in the specification is: $26,396.80. (c) 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 elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (d) 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”3 to the Union and to all unit employees employed at the Rosedale facility on or after November 2002. (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 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 Federal labor law and has ordered us to post 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 benefit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT fail to give United Steelworkers of America, Local Union No. 250, AFL–CIO, CLC, prior notice of a decision to close our facility and an opportu- nity to bargain over the effects of that decision on the employees in the following unit: All production and maintenance employees including truck drivers, lead persons, and regular part-time em- ployees employed at Respondent’s Rosedale, Missis- sippi plant, excluding all office clerical employees, shipping clerks, professional employees, technical em- ployees, tool makers, apprentice tool makers, drafts- man-chemist, and mold-maker, guards, foremen, assis- tant foremen, 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 with United Steel- workers of America, Local Union No. 250, AFL–CIO, CLC, over the effects of the closure of our facility on the 3 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 Na- tional 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.” ROSEDALE FABRICATORS, LLC 511 unit employees, and put in writing and sign any agree- ment reached as a result of such bargaining. WE WILL pay unit employees backpay in the amounts set forth next to their names in Appendix A to the com- pliance specification, plus interest, minus tax withhold- ings required by Federal and State laws. ROSEDALE FABRICATORS, LLC