O.P. Held, Inc. Debtor-In-Possession

676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD O.P. Held, Inc., Debtor-In-Possession and Local Lodge 645, District Lodge 157, International Association of Machinists and Aerospace Work- ers, AFL-CIO. Cases 3-CA-13688, 3-CA- 13688-2, and 3-CA-13791 30 September 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS Upon a charge filed by the Union in Case 3- CA-13688 on 2 March 1987, as amended on 5 March and 9 April 1987, alleging that O.P. Held, Inc. (the Company) violated Section 8(a)(5) and (1) of the National Labor Relations Act, and upon a charge filed by the Union in Case 3-CA-13688-2 on 19 March 1987, alleging that the Company vio- lated Section 8(a)(5) and (1) of the Act, the Acting Regional Director issued an order consolidating cases, complaint, and notice of hearing on 22 April 1987. Upon a charge filed by the Union in Case 3- CA-13791 on 7 May 1987, as amended on 28 May 1987, the Acting Regional Director on 29 May 1987 issued an order further consolidating cases, complaint, and notice of hearing in Cases 3-CA- 13688, 3-CA-13688-2, and 3-CA-13791 alleging that the Company violated Section 8(a)(1), (3), and (5) and Section 8(d) of the Act. Although properly served copies of the amended consolidated complaints, the Company has failed to file a sufficient answer. On 16 July 1987 the General Counsel filed a motion to transfer case to and continue proceeding before the Board and for summary judgment. On 17 July 1987 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 Company filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions 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 amended consoli- dated 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 to be true and may be so found by the Board." Further, the undisputed allegations in the Motion for Sum- mary Judgment disclose that counsel for the Gen- eral Counsel, by certified letter dated 16 June 1987, notified the Company that unless an answer was re- ceived by 26 June 1987, a Motion for Summary Judgment would be filed. By letter dated 25 June 1987 to counsel for the General Counsel, the Company stated, inter alia, that it had filed a petition under Chapter 11 of the Bankruptcy Code and "will file a Chapter 7 short- ly." We find that this letter is insufficient to consti- tute an answer to the complaint under Section 102.20 of the Board's Rules and Regulations be- cause it does not specifically admit, deny, or ex- plain each of the allegations in the complaint. See Goldstein Co., 274 NLRB 682 (1985).1 In the absence of good cause being shown for the failure to file a sufficient answer, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a New York corporation, has its principal office and place of business in Utica, New York, where it is engaged in the manufacture, sale, and distribution of screws and machine parts. An- nually, in the course and conduct of its business op- erations, the Company manufactures, sells, and dis- tributes at the Utica plant, products valued in excess of $50,000, of which products valued in excess of $50,000 are shipped from said plant di- rectly to States of the United States other than the State of New York. Since about 16 March 1987, the Company has been a debtor-in-possession with full authority to continue its operations and to ex- ercise all powers necessary to administer its busi- ness. O.P. Held, Inc., Debtor-In-Possession, is, and has been at all times material, a successor in bank- ruptcy to the Company. We find that the Company 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 mean- ing of Section 2(5) of the Act. i Par VIII(a) of the amended consolidated complaint alleges, inter alia, that since about December 24, 1986, the Respondent has failed to timely pay the employees the contractual wages due them Although in its 25 June letter the Company asserts that "the Bank" dishonored its 24 December payroll checks but that the employees subsequently received the wages due that week, such an assertion is insufficient to render the Respondent's letter an answer within the meaning of Sec 102 20 of the Board's Rules and Regulations for, inter alia, the reasons noted above We also note that the Company attached to its letter a copy of a petition purportedly signed by a number of employees , stating that they no longer "recognize [the] Union as a representative in our behalf " It is well set- tled, however, that a union enjoys an irrebutable presumption of majority status during the term of a collective-bargaining agreement 286 NLRB No. 59 O.P. HELD , INC. 677 II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Company con- stitute 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 ex- cluding all office clerical employees, profes- sional employees, watchmen, guards and su- pervisors as defined in the Act. At all times material, the Union, by virtue of Section 9(a) of the Act has been and is the exclu- sive representative of the unit described above for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Such recognition has been embodied in a collective-bar- gaining agreement running from 17 July 1985 until 17 July 1988. Since about the dates set forth below, the Com- pany, acting by and through its vice president, gen- eral manager, and agent, Gerald 0. Williams, repu- diated the collective-bargaining agreement, not- withstanding that at all times material the agree- ment has been in full force and effect, by engaging in the following acts and conduct: (a) 24 December 1986-Failing to timely pay the employees the contractual wages due them. (b) 1 January 1987-Failing to withhold union dues from the pay of employees who had author- ized the withholding and/or failing to remit said withholdings to the Union. (c) 14 January and 2 March 1987-Stating that the collective-bargaining agreement was no longer in effect. (d) 17 and 29 April 1987--Refusing to allow union representatives access to the plant for the purpose of policing the agreement. (e) 21 and 30 April 1987--Refusing to comply with arbitration awards ordering the Company to reinstate with backpay Union Stewards James Lowell and Creg Turner.2 The terms and conditions of employment of the agreement repudiated by the Company are manda- tory subjects of bargaining. Further, the Company has refused to reinstate James Lowell and Creg Turner because the employees joined, supported, or assisted the Union and engaged in other union activities or concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and in order to discourage employees from engaging in such activities or other concerted ac- tivities and in order to discourage the Union from 2 The names of these two employees appear as set forth in the amend- ed consolidated complaint acting as bargaining representative of the unit de- scribed above. We find that through this conduct the Respond- ent has violated the Act as alleged in the consoli- dated complaints. CONCLUSIONS OF LAW 1. By the acts and conduct described above, the Company did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed in Section 7 of the Act, and the Company thereby has been engaging in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By refusing to comply with the arbitration awards ordering the reinstatements with backpay of James Lowell and Creg Turner, and refusing to reinstate these employees because they joined, sup- ported, or assisted the Union and engaged in other union activities or concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and in order to discourage employees from engaging in such activities or other concerted activities, and in order to discourage the Union from acting as bargaining representative of the above-described unit, the Company did discrimi- nate, and is discriminating, regarding the hire and tenure and terms and conditions of employment of its employees and thereby did engage in, and is en- gaging in, unfair labor practices affecting com- merce within the meaning of Section 8(a)(3) of the Act. 3. By the acts described above in section II, paragraphs (a)-(e), and by refusing to reinstate em- ployees James Lowell and Creg Turner, the Com- pany has failed and refused, and is failing and re- fusing, to bargain collectively with the representa- tive of its employees and thereby has been engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and Section 8(d) 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. 3 s The General Counsel requests a visitatorial clause authorizing the Board, for compliance purposes , to obtain discovery from the Company under the Federal Rules of Civil Procedure subject to the United States Court of Appeals enforcing the Order Under the circumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD We shall order the Respondent to adhere to the terms and conditions of the collective-bargaining agreement with the Union and to make the unit employees whole for any losses suffered as a result of the Respondent's repudiation of that agreement, to be computed in the manner set forth in Ogle Pro- tection Service, 183 NLRB 682 (1970). We further shall order the Respondent to remit to the Union the dues it should have withheld from the pay of employees who had authorized said withholding. We also shall order the Respondent to comply with the arbitration awards ordering the Respond- ent to reinstate with backpay James Lowell and Creg Turner, to offer them immediate and full rein- statement to their former positions or, if their posi- tions no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges previously enjoyed, and to make them whole for any losses suffered subse- quent to the arbitration awards as a result of the Respondent's unlawful refusal to reinstate them, to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950). Interest on the above amounts is to be computed in the manner set forth in New Horizons for the Retarded.4 We shall also require that the Respondent remove from its records any reference to the refus- al to reinstate James Lowell and Creg Turner, pro- vide written notice of such removal to them, and inform them that the unlawful conduct will not be used as a basis for further personnel actions against them. See Sterling Sugars, 261 NLRB 472 (1982). ORDER The National Labor Relations Board orders that the Respondent, O.P. Held, Inc., Debtor- In-Posses- sion, Utica, New York, its officers , agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively with Local Lodge 645, District Lodge 157, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO by repudiating the collective- bargaining agreement with the Union, by failing to timely pay employees wages due them under the agreement, and by failing to withhold union dues from employees who had authorized dues with- holding and/or failing to remit the withholdings to the Union; stating that the collective-bargaining agreement is no longer in effect; refusing to allow 4 In accordance with our decision to New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) union representatives access to the plant for the purpose of policing the agreement; refusing to comply with arbitration awards ordering the Re- spondent to reinstate, with backpay, employees James Lowell and Creg Turner. (b) Refusing to reinstate or otherwise discrimi- nating against employees because they engage in union or protected concerted activity. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Adhere to the terms and conditions of em- ployment of the collective-bargaining agreement with Local Lodge 645, District Lodge 157, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, running from 17 July 1985 until 17 July 1988. (b) Make its employees whole for any losses suf- fered as a result of the Respondent's unlawful repu- diation of the collective-bargaining agreement in the manner set forth in the remedy section of the decision. (c) Remit to the Union the dues it should have withheld from the pay of the employees who had authorized such withholding, in the manner set forth in the remedy section of the decision. (d) Comply with the arbitration awards ordering it to reinstate with backpay employees James Lowell and Creg Turner; offer these employees im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or any other rights or privileges previously enjoyed; and make them whole for any losses suf- fered subsequent to the arbitration awards as a result of the Respondent's unlawful refusal to rein- state them, in the manner set forth in the remedy section of the decision. (e) Remove from its files any reference to the unlawful refusal to reinstate James Lowell and Creg Turner and notify them in writing that this has been done and that such unlawful conduct will not be used against them in any way. (f) Preserve and, on request, make available to the Board or its agents for examination and copy- ing all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 0 P. HELD, INC (g) Post at its facility in Utica, New York, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 3, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Company to ensure that the notices are not altered, defaced, or cov- ered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enfoicing an Order of the National Labor Relations Board " 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 fail and refuse to bargain collec- tively with Local Lodge 645„ District Lodge 157, International Association of Machinists and Aero- space Workers, AFL-CIO as the exclusive repre- sentative of our employees in the unit described below by repudiating our collective-bargaining agreement with the Union by the following acts: failing to timely pay employees wages due them under the agreement and to withhold union dues from employees who have authorized dues with- holding and/or to remit the withholdings to the Union stating during its term that the collective- bargaining agreement is no longer in effect refusing to allow union representatives access to the plant 679 for the purpose of policing the agreement and re- fusing to comply with arbitration awards ordering the reinstatement with backpay of employees James Lowell and Creg Turner. The appropriate unit is: All production and maintenance employees ex- cluding all office clerical employees, profes- sional employees, watchmen, guards and su- pervisors as defined in the Act. WE WILL NOT refuse to reinstate or otherwise discriminate against you because you engaged in union or protected concerted activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL adhere to the terms and conditions of our collective-bargaining agreement with the Union, running from 17 July 1985 until 17 July 1988. WE WILL make our employees whole for any losses suffered as a result of our unlawful repudi- ation of the collective-bargaining agreement, with interest. WE WILL remit to the Union the dues we should have withheld from the pay of the employees who had authorized such withholdings, with interest. WE WILL comply with arbitration awards order- ing us to reinstate with backpay employees James Lowell and Creg Turner, WE WILL offer these em- ployees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and WE WILL make them whole for any losses suffered subsequent to the arbitration awards as a result of our unlawful refusal to rein- state them, with interest. WE WILL remove from our files any reference to our unlawful refusal to reinstate James Lowell and Creg Turner and notify them, in writing, that this has been done and that evidence of the unlawful conduct will not be used against them in any way. O.P. HELD. INC., DEBTOR-IN-POSSES- SION