Bridgeport Rolling Mills Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 275 Bridgeport Rolling Mills Company and Local 376, International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW). Case 39-CA-3563 March 31, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT Upon a charge filed by the Union July 15, 1987,1 and an amended charge filed August 28, the Gen- eral Counsel of the National Labor Relations Board issued a complaint against Bridgeport Roll- ing Mills Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. Although properly served copies of the charge and complaint, the Re- spondent has failed to file an answer. On November 23, the General Counsel filed a Motion for Summary Judgment. On November 25, the Board issued an order transferring the proceed- ing 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 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 complaint states that unless an answer is filed within 14 days of service, "all of the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." According to uncon- troverted statements and supporting exhibits in the General Counsel's Motion for Summary Judgment, the original and amended charges were served by certified mail on the Respondent at its last known business address in Stratford, Connecticut. A copy of the complaint sent by certified mail on Septem- ber 23 to this same address was returned with the U.S. Postal Service notation that it was "un- claimed." The complaint was re-served by regular mail at the Stratford address on October 16. On this same date a letter advising the Respondent of the requirements of Section 102.20 of the Board's Rules and Regulations with respect to the filing of an answer to the complaint was served by certified All dates are in 1987 unless otherwise indicated and regular mail at the Stratford address. All docu- ments mailed on October 16 were returned with the notation, "Return to Sender, Moved Left No Address." Thereafter, based on information re- ceived from a former employee of the Respondent, the complaint was served by certified mail on the Respondent on October 29 at its post office box ad- dress in Bridgeport, Connecticut. Copies of the af- fidavit of service and receipt card were attached as exhibits to the General Counsel's motion. Further, Counsel for the General Counsel notified the Re- spondent, by letter dated November 5 and sent by certified and regular mail to the Respondent at its post office box in Bridgeport, that a Motion for Summary Judgment would be filed unless an answer was received by the close of business on November 13. Copies of the letter and certified mail receipt card were attached as exhibits to the General Counsel's motion. To date, the Respond- ent has not filed an answer to the complaint or a request for an extension of time to file an answer. 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 fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, a Delaware corporation, has been engaged in the manufacture and nonretail sale and distribution of strips and rolls of copper and copper alloys at its facility in Stratford, Connecti- cut, where it annually sold and shipped products, goods, and materials valued in excess of $50,000 di- rectly to points outside the State of Connecticut. The Respondent annually purchased and received at its facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Connecticut. We find that the Re- spondent 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Respondent, excluding foremen, assistant foremen, office workers, salaried employees, and guards, professional employees and super- visors as defined in the Act. 288 NLRB NO. 34 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD At all times material herein the Union has been the designated exclusive collective-bargaining rep- resentative of the employees in the unit described above for the purposes of collective bargaining with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of em- ployment. The most recent collective-bargaining agreement between the Union and the Respondent was effective by its terms from May 5, 1987, through January 31, 1988. About June 19, the Respondent failed to contin- ue in full force and effect all the terms and condi- tions of the agreement described above by failing to pay employees their contractual vacation bene- fits and by failing to offer laid-off employees ex- tended coverage under the contractual group hos- pital-medical insurance plan. The terms and condi- tions of the agreement that the Respondent failed to continue in full force and effect are terms and conditions of employment of employees in the unit and are mandatory subjects of bargaining. The Re- spondent engaged in the acts and conduct de- scribed above without prior notice to and without the consent of the Union, and without having af- forded the Union an opportunity to negotiate and bargain as the exclusive representative of the Re- spondent's employees with respect to such acts and conduct. About June 19, the Respondent closed its facility and laid off all unit employees. About June 19 the Union requested the Respondent to bargain over the effects of the closing, but since this time the Respondent has refused such request. We fmd that by the above-mentioned conduct the Respondent has refused to bargain collectively with the Union in derogation of its bargaining obli- gation under Section 8(d) of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By unilaterally failing to pay employees contrac- tual vacation benefits and to offer laid-off employ- ees extended coverage under their contractual group hospital-medical insurance coverage, and by failing and refusing to bargain with the Union as the exclusive bargaining representative of its em- ployees in the aforesaid appropriate unit with re- spect to the effects of the closing of its facility, the Respondent has engaged in unfair labor practices 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 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.2 Inasmuch as the Respondent has closed its Strat- ford facility, we shall order the Respondent to mail signed copies of the notice to the Union and to all its bargaining unit employees employed on June 19. Benchmark Industries, 269 NLRB 1096, 1099 (1984). We shall order the Respondent to make whole any unit employees in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1980), for the contractually required vacation payments that it failed to make on and after June 19, 1987. In addi- tion, we shall order the Respondent to make unit employees whole for any losses suffered as a result of the Respondent's unlawful failure to provide the contractually required extended group hospital- medical insurance coverage on and after June 19. This shall include reimbursing employees for any premiums they may have paid to third-party insur- ance companies to continue such insurance cover- age in the absence of the Respondent's required payments, and for any bills they have paid directly to health care providers that the contractual poli- cies would have covered. Kraft Plumbing & Heat- ing, 252 NLRB 891 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). As a result of the Respondent's unlawful failure to bargain about the effects of closing its Stratford facility, the laid-off employees have been denied an opportunity to bargain through their collective-bar- gaining representative at a time when the Respond- ent might still have been in need of their services and a measure of balanced bargaining power exist- ed Meaningful bargaining cannot be assured until some measure of economic strength is restored to the Union. A bargaining order alone, therefore, cannot serve as an adequate remedy for the unfair labor practice committed. Accordingly, we deem it necessary to require the Respondent to bargain with the Union concern- ing the effects on its employees of the closing of its Stratford facility, and we shall accompany our Order with a limited backpay requirement designed both to make whole the employees for losses suf- fered as a result of the violation and to re-create in some practicable manner a situation in which the parties' bargaining position is not entirely devoid of economic consequences for the Respondent. We shall do so in this gase by requiring the Respondent to pay backpay to its employees in a manner simi- 2 The General Counsel has requested in the complaint that the Order include a visrtatonal clause We find no need for such a remedial provi- sion in the circumstances of this case. See Cherokee Marine Terminal, 287 NLRB 1080 (1988) BRIDGEPORT ROLLING MILLS CO. 277 lar to that required in 'Transrrzarine Navigation Corp., 170 NLRB 389 (1968). Thus, the Respondent shall 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 occurrence of the earliest of the following conditions: ( 1 ) the date the Respond- ent bargains to agreement with the Union on those subjects pertaining to the effects on its employees of the closing .of its operations; (2) a bona fide im- passe in bargaining; (3) the failure of the Union , 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 bar- gain with the Union; or (4) the subsequent failure of the Union to bargain in good faith, but in no event shall the sum paid to any of these employees exceed the amount the employee would have earned as wages from June 19, 1987, the date on which the Respondent ceased its operations, to the time the employee 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 than these employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ. All remedial reimbursement payments to employ- ees shall be made with interest as prescribed in New Horizons for the Retarded.3 ORDER The National Labor Relations Board orders that the Respondent, Bridgeport Rolling Mills Compa- ny, Stratford and Bridgeport, Connecticut, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to provide vacation pay and group hospital-medical insurance coverage for unit em- ployees as provided for in the May 5, 1987, through January 31, 1988 collective-bargaining agreement with Local 376, UAW. (b) Refusing to bargain with the Union with re- spect to the effects on the unit employees of the Respondent's decision to close its Stratford facility. (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. 3 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1 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 January 1, 1987 (the effective date of the 1986 amendment to 26 U S.0 § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make whole all employees, with interest, for any losses attributable to the Respondent's failure to provide vacation pay and group hospital-medical insurance coverage as provided for in the collec- tive-bargaining agreement. (b) On request, bargain collectively with the Union concerning the effects on unit employees of the decision to close its Stratford facility. (c) Pay the laid-off unit employees their normal wages for the period set forth in the remedy sec- tion of this Decision and Order. (d) 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. '(e) Mail an exact copy of the attached notice marked "Appendix" to the Union and to all em- ployees who were employed in the unit at the Stratford, Connecticut facility on June 19. 4 Copies of the notice, on forms provided by the officer in charge for Subregion 39, after being signed by the Respondent's authorized representative, shall be mailed immediately upon receipt, as directed above. (f) Notify the officer in charge in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 4 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 Enforcing 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 cease to provide vacation pay and group hospital-medical insurance coverage for unit employees as provided for in the May 5, 1987, through January 31, 1988 collective-bargaining agreement with Local 376, UAW WE WILL NOT refuse to bargain with the Union with respect to the effects on our unit employees of 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD our decision to close our Stratford, Connecticut fa- cility. 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 make whole all employees, with inter- est, for any losses attributable to our failure to pro- vide vacation pay and group hospital-medical in- surance coverage as provided for in the collective- bargaining agreement. WE WILL, on request, bargain with the Union with respect to the effects on our unit employees of our decision to close our Stratford, Connecticut fa- cility. WE WILL pay the employees who were em- ployed by us their normal wages, plus interest, for a period specified by the National Labor Relations Board. BRIDGEPORT ROLLING MILLS COM- PANY