Rexart Corp.

REXART CORP 25 Rexart Corporation and Graphic Communications Union Local 404M, Graphic Communications International Union, AFL-CIO Case 21-CA- 23082 17 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER Upon a charge filed by the Union 26 March 1984, the General Counsel of the National Labor Relations Board issued a complaint 10 May 1984 against the 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 Company has failed to file an answer On 11 June 1984 the General Counsel filed a Motion for Summary Judgment On 14 June 1984 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 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 10 days from service of the complaint, unless good cause is shown The complaint states that unless an answer is filed within 10 days of service, "all of the allegations in said 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 Summary Judgment disclose that the General Counsel, by letter dated 25 May 1984, notified the Company that unless an answer was received by 4 June 1984 a Motion for Summary Judgment would be filed No such answer was submitted 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 Judg- ment 1 1 In granting the General Counsel s Motion for Summary Judgment, Chairman Dotson specifically relies on the total failure of the Respondent to contest either the factual allegations or the legal conclusions of the General Counsel's complaint Thus the Chairman regards this proceeding as being essentially a default judgment which is without precedential value On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Company is engaged in the manufacture of ink at its facility in Los Angeles, California, where, during the past calendar year, it sold and shipped goods and products valued in excess of $50,000 to customers located within the State of California, each of which, in turn, during the same period of time, sold and shipped goods and products valued in excess of $50,000 directly to customers located outside the State of California or purchased and re- ceived goods and products valued in excess of $50,000 directly from suppliers located outside the State of California We find that the Company is an employer engaged in commerce within the mean- ing 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 Since at least 1 January 1981, the Union has been recognized as the exclusive bargaining representa- tive for an appropriate unit within the meaning of Section 9(b) of the Act consisting of the following employees All working foremen, combination men, mill- men, shipping and receiving clerks, shipper- drivers A, shipper-drivers B and utility work- ers employed by the Respondent at its facility located at 2437 South Eastern Avenue, Los Angeles, California, excluding all other em- ployees, guards and supervisors as defined in the Act On 1 January 1981 the Union and the Respondent entered into a collective-bargaining agreement which was effective until 31 December 1983 The parties orally extended this agreement from 31 De- cember 1983 until the completion of new contract negotiations About 16 January 1984 the Respondent decided to close the above-mentioned facility Since that time the Respondent has refused the Union's re- quests to bargain over the effects of the plant clo- sure on the unit employees In addition, the Re- spondent, without notifying or bargaining with the Union, has refused to pay accumulated vacation pay as required by the collective-bargaining agree- ment We find that the Respondent, by refusing to bargain about the effects of the plant closure on unit employees and by unilaterally failing to pay accumulated vacation pay pursuant to the parties' 272 NLRB No 5 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining agreement, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW 1 By refusing to bargain with the Union about the effects of the plant closure on unit employees, the Company has violated Section 8(a)(5) and (1) of the Act 2 By refusing to pay accumulated vacation pay required by the parties' collective-bargaining agree- ment, the Company has violated Section 8(a)(5) and (1) of the Act 3 The aforesaid unfair labor practices affect commerce within the meaning of 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 We shall order the Respondent to pay the accu- mulated vacation pay owing to unit employees pur- suant to the parties' collective-bargaining agree- ment Interest on the vacation pay owed unit em- ployees shall be paid in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977) 2 With respect to the Respondent's unlawful fail- ure to bargain with the Union about the effects of its decision to close its Los Angeles, California fa- cility, the bargaining unit employees have been denied an opportunity to bargain through their col- lective-bargaining representative at a time when the Respondent might still have been in need of their services and a measure of balanced bargaining power existed Meaningful bargaining cannot be as- sured 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 practices committed Accordingly, we deem it necessary, in order to effectuate the purposes of the Act, to require the Respondent to bargain with the Union, upon re- quest, about the effects of the closure on unit em- ployees, and shall accompany our order with a lim- ited backpay requirement designed both to make the employees whole for losses suffered as a result of the Respondent's failure to bargain, and to recreate in some practicable manner a situation in which the parties' bargaining position is not entire- ly devoid of economic consequences for the Re- spondent We shall do so in this case by requiring 2 See generally Isis Plumbing Go, 138 NLRB 716 (1962) that the Respondent pay backpay to unit employ- ees in a manner similar to that required in Trans- marine Corp, 170 NLRB 389 (1968) The Respond- ent shall pay 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 the occurrence of the earliest of the following conditions (1) The date the Re- spondent bargains to agreement with the Union on those subjects pertaining to the effects of the plant closure on unit employees, (2) a bona fide impasse in bargaining, (3) the failure of the Union to re- quest bargaining within 5 days of the date of this Decision, or to commence negotiations within the 5 days of the Respondent's notice of its desire to bargain with the Union, (4) the subsequent failure of the Union to bargain in good faith In no event shall the sum paid to any of these employees exceed the amount they would have earned as wages from the date on which the Respondent ter- minated its operations to the time they secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bar- gain, whichever occurs sooner, provided, however, that in no event shall this sum be less than the amount these employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ ORDER The National Labor Relations Board orders that the Respondent, Rexart Corporation, Los Angeles, California, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Refusing to bargain with Graphic Communi- cations Union Local 404M about the effects of closing its 2437 South Eastern Avenue, Los Ange- les, California facility on unit employees (b) Failing and refusing to pay accumulated va- cation pay owed to unit employees as required by the collective-bargaining agreement between it and the Union (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) Upon request, bargain collectively with the Union about the effects of closing its 2437 South Eastern Avenue, Los Angeles, California facility on unit employees and, if an understanding is reached, embody such understanding in a signed agreement REXART CORP 27 (b) Pay the unit employees laid off or discharged on the date the Respondent terminated operations their normal wages for the period set forth in the Remedy section of this Decision (c) Pay unit employees the accumulated vacation pay to which they are entitled pursuant to the col- lective-bargaining agreement between it and the Union, plus interest (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" 3 to Graphic Communications Union Local 404M, and to all the unit employees who were employed at its 2437 South Eastern Avenue, Los Angeles, California facility Copies of said notice on forms provided by the Regional Di- rector for Region 21, after being duly signed by its authorized representative, shall be mailed immedi- ately upon receipt thereof, as herein directed (f) 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 Na tional Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al 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 with Graphic Communications Union Local 404M, Graphic Communications International Union, AFL-CIO, with respect to the effects on unit em- ployees of our decision to close our facility at 2437 South Eastern Avenue, Los Angeles, California WE WILL NOT fail and refuse to pay accumulated vacation pay owed to unit employees pursuant to our collective-bargaining agreement with Local 404M 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, on request, bargain collectively with Graphic Communications Union Local 404M, Graphic Communications International Union, AFL-CIO, with respect to the effects on unit em- ployees of our decision to close our facility at 2437 South Eastern Avenue, Los Angeles, California, and put in writing and sign any agreement reached as a result of such bargaining WE WILL pay the unit employees who were em- ployed at the Los Angeles facility their normal wages for a period required by the Board's Deci- sion and Order WE WILL pay all affected employees the accu- mulated vacation pay to which they are entitled pursuant to our collective-bargaining agreement with Local 404M REXART CORPORATION