Herbert Printing & Graphics

HERBERT PRINTING & GRAPHICS 539 Herbert Enterprises, Inc., d/b/a Herbert Printing & Graphics and Graphic Communications Interna- tional Union, Local 72-C and Dyna Graphics, Inc.,' Party in Interest. Case 5-CA-20640 August 23, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY Upon a charge filed by the Union August 16, 1989, the General Counsel of the National Labor Relations Board issued a complaint January 31, 1990, against Herbert Enterprises, Inc. d/b/a Her- bert Printing & Graphics, the Respondent, alleging that it 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 May 14, 1990, the General Counsel filed a Motion for Summary Judgment On May 16, 1990, 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 proceedmg 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" Further, the undisputed allegations m the Motion for Summary Judgment disclose that counsel for the General Counsel, by a telephone conversation between Field Examiner Kevin J Sturm and the Respondent's attorney on March 22, 1990, and a letter to the Respondent's attorney confirming that conversation dated April 10, 1990, notified the Respondent that unless an answer was received, a Motion for Summary Judg- ' In his Motion to Transfer Proceedings to the Board and for Summa- ry Judgment, the counsel for the General Counsel pointed out that in the complaint the Party in Interest was alleged to be a successor of the Re- spondent pursuant to Golden State Bottling Co v NLRB, 414 U S 168 (1973) He further indicated that the Motion for Summary Judgment did not seek to establish the liability of the Party in Interest, but rather the Respondent's liability, and that the Party in Interest may litigate its liabil- ity in a supplemental proceeding Accordingly, we do not pass on the li- ability of the Party in Interest ment would be filed The Respondent's attorney in- dicated that the Respondent decided not to file an answer and an extension of time was not necessary In the absence of good cause being shown for the failure to file a timely answer and in light of the indication by the Respondent's attorney that the Respondent had decided not to file an answer, we grant the General Counsel's Motion for Sum- mary Judgment On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a Maryland corporation, has been engaged in the printing and graphics busmess at its facility in Fort Washington, Maryland, where in the 12 months precedmg issuance of the com- plaint, a representative period, it has provided goods and services m excess of $50,000 directly to points outside the State of Maryland We find that the Respondent is an employer engaged in com- merce withm the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES Since on or about May 26, 1987, and at all times material, the Union has been recognized as the ex- clusive collective-bargaining representative of a unit of employees appropriate for collective bar- gammg within the meamng of Section 9(b) of the Act 2 That recogmtion has been embodied m the collective-bargaining agreement, which was effec- tive by its terms for the period March 11, 1986, to and including March 10, 1989 At all times materi- al, the Umon by virtue of Section 9(a) of the Act has been and is the exclusive representative of the unit employees for the purpose of collective bar- gaming with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment Since on or about February 16, 1989, and until September 7, 1989, the date Dyna Graphics, Inc , the Party in Interest, purchased the busmess and assets of the Respondent, the Respondent has failed to continue the terms and conditions of the collec- tive-bargallung agreement by umlaterally discon- tmumg its contributions to the pension fund on behalf of the unit Those terms relate to wages, hours, and other terms and conditions of employ- ment, which are mandatory subjects for the pur- 2 The unit is descnbed in sec 16 of the parties' collective-bargaining agreement The agreement has not been included in the record 299 NLRB No 78 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pose of collective bargaining. The Respondent en- gaged in these acts and conduct without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the exclusive representative of the unit with re- spect to such acts and conduct and their effects. We find that the Respondent has violated Section 8(a)(5) and (1) of the Act by this conduct. CONCLUSION OF LAW By failing and refusing to continue the terms and conditions of its collective-bargaining agreement with the Union by failing to make contributions to the pension fund on behalf of the unit employees, the Respondent has failed and refused, and is fail- ing and refusing, to bargain collectively and in good faith with the representative of its employees, and thereby 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 certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative actions designed to effectuate the policies of the Act. We shall order the Respondent to continue the terms and conditions of its collective-bargain- ing agreement with the Union, specifically with re- spect to making the contractually required contri- butions to the pension fund for the period between February 16 and September 7, 1989, to be comput- ed in the manner set forth in Merryweather Optical Co., 240 NLRB 1213 (1979). We also shall order the Respondent to make whole its unit employees for any expenses and losses they may have suffered as a result of its failure to make the required contri- butions to the pension fund, as prescribed in Kraft Plumbing & Heating, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), to be computed in the manner set forth in Ogle Protection Service, 182 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest to be computed in the manner set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Herbert Enterprises, Inc., d/b/a Herbert Printing & Graphics, Fort Washington, Maryland, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing to continue the terms and conditions of its collective-bargaining agreement with Graphic Communications International Union, Local 72-C (the Union), by failing and refusing to make the contractually required contributions to the pension fund on behalf of the employees in the appropriate unit. The appropriate unit is described in the Re- spondent's collective-bargaining agreement with the Union, which was effective from March 11, 1986, through March 10, 1989. (b) 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) Continue the terms and conditions of the col- lective-bargaining agreement that the Respondent entered into with the Union, specifically with re- spect to making the contractually required contri- butions to the pension fund on behalf of the unit employees, as set forth in the remedy section of this Decision and Order. (b) Make whole the employees in the unit for any expenses and losses they may have suffered as a result of the Respondent's failure and refusal to continue the terms and conditions of the collective- bargaining agreement, in the manner prescribed in the remedy section of this Decision and Order. (c) 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. (d) Post at its facility in Fort Washington, Mary- land, copies of the attached notice marked "Appen- dix."3 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 3 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." HERBERT PRINTING & GRAPHICS 541 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 continue the terms and conditions of our collective-bargaining agreement with Graphic Communications Interna- tional Union, Local 72-C (the Union), by failing and refusing to make contributions to the pension fund on behalf of our employees in the appropriate unit The appropnate unit is descnbed in our col- lective-bargaimng agreement with the Union, which was effective from March 11, 1986, through March 10, 1989 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you m the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL continue the terms and conditions of our collective-bargaining agreement with the Union by making contributions to the pension fund on behalf of the unit employees WE WILL make whole our employees for any ex- penses and losses they may have sustained as a result of our failure and refusal to continue the terms and conditions of our collective-bargaining agreement with the Union, with mterest HERBERT ENTERPRISES, INC , D/B/A HERBERT PRINTING & GRAPHICS