Authentic Furniture Products, Inc , Debtor-In-Pos-Session, And Authentic Furniture Products, Inc , Alter Egos And/Or Single Employer

552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Authentic Furniture Products, Inc , Debtor-In-Pos- session, and Authentic Furniture Products, Inc , Alter Egos and/or Single Employer and Fox River Valley District Council of The Carpen- ters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO Case 13-CA- 21956 28 September 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 11 February 1983 Administrative Law Judge Claude R Wolfe issued the attached decision The General Counsel filed exceptions and a supporting brief 1 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the Judge's rulings, findings, and conclusions and to adopt the recommended Order as modified below 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law Judge as modified below and orders that the Re- spondent, Authentic Furniture Products, Inc, Debtor-in-Possession, and Authentic Furniture Products, Inc, Alter Egos and/or Single Employ- er, Aurora, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs "(b) On request, furnish to the Union information relevant and necessary to intelligent collective bar- gaining and to the Union's function in fulfilling its obligations as the collective-bargaining representa- tive of its employees, as requested by the Union's On 15 June 1984 the General Counsel filed a motion to partially withdraw exceptions Specifically, the General Counsel seeks to with draw its second exception in light of the Board's recent decision in Earle Equipment Co, 270 NLRB 827 (1984) We grant this motion 2 The General Counsel has excepted to the judge s failure to include in his recommended Order an affirmative provision requinng the Respond ent to furnish to the Union the requested information unlawfully with held by the Respondent We find merit in this exception and shall modify the judge's recommended Order accordingly and issue a new notice to employees In agreeing with the Judge s limited backpay remedy in accordance with Transmanne Navigation Carp, 170 NLRB 389 (1968) we note that this remedy was provided by the Board in a similar situation in Seeburg Corp , 259 NLRB 819 (1981) The Board's decision in Seeburg Corp was enforced in pertinent part by the Seventh Circuit Court of Appeals (709 F 2d 1138 (7th Cir 1983)), and the Supreme Court denied certiorari on 21 February 1984 (115 LRRM 2784, 100 LC 11 10,800) letters of 18 'December 1981, 5 January 1982, and 27 January 1982" 2 Substitute the attached notice for that of the administrative law Judge 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 Fox River Valley District Council of the Carpen- ters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO concerning the effects of our decision to close our Aurora, Illinois facility on the employees in the bargaining unit described below The appropriate bargaining unit is All production, maintenance and warehouse employees and truck drivers at our facility lo- cated at 971 Industrial Drive, Aurora, Illinois, but excluding all office and clerical employees, professional employees, technical and manage- rial employees, guards and supervisors as de- fined in the National Labor Relations Act WE WILL NOT fail and refuse to furnish Fox River Valley District Council of the Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO requested information relevant and necessary to intelligent collective bargaining and the Union's function in fulfulling its obligations as the collective-bargaining representative of em- ployees in the above unit WE WILL NOT fail to remit to the Union those union dues deducted from unit employees' wages in December 1981 and January 1982 WE WILL NOT fail and refuse to apply the health insurance plan set forth in our collective-bargaining agreement with the Union which expired 31 Janu- ary 1982 to employee claims that would have been covered by the plan had we not substituted our self-insured plan for it WE WILL NOT make changes in unit employees' health insurance plans or other matters related to wages, hours, and working conditions without first giving the Union prior notice and an opportunity to bargain on any such contemplated change 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 272 NLRB No 87 AUTHENTIC FURNITURE PRODUCTS 553 WE WILL, on request, bargain collectively with Fox River Valley District Council of the Carpen- ters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed above, concerning the effects of our deci- sion to close our Aurora, Illinois facility on unit employees, and reduce in writing any agreement reached as a result of such bargaining WE WILL, on request, furnish to the Union infor- mation relevant and necessary to intelligent collec- tive bargaining and to the Union's function in ful- filling its obligations as to the collective-bargaining representative of our employees, as requested by the Union's letters of 18 December 1981, 5 January 1982, and 27 January 1982 WE WILL pay the employees who were em- ployed at the above facility their normal wages for a period specified by the National Labor Relations Board, plus interest WE WILL establish a preferential hiring list of all terminated employees in the above bargaining unit, following the seniority system provided for in the collective-bargaining agreement with the Union and, if we resume operations anywhere in the Aurora area, we shall offer these employees rein- statement If, however, we resume our operations at the Aurora facility, the unit employees shall be offered reinstatement to their former or substantial- ly equivalent positions WE WILL reimburse employees in the above-de- scribed unit for any monetary losses suffered as a result of our unilateral change in health benefit plans, with interest WE WILL deliver to the above-named Union dues money withheld from the wages of employees in the above-described bargaining unit in December 1981 and January 1982, with interest AUTHENTIC FURNITURE PRODUCTS, INC , DEBTOR-IN-POSSESSION, AND AUTHENTIC FURNITURE PRODUCTS, INC , ALTER EGOS AND/OR SINGLE EMPLOYER DECISION STATEMENT OF THE CASE CLAUDE R WOLFE, Administrative Law Judge On a charge and an amended charge filed on February 1 and March 1, 1982, respectively, by Fox River Valley Dis- trict Council of Carpenters, United Brotherhood of Car- penters and Joiners of America, AFL-CIO (the Union), and duly served on Authentic Furniture Products, Inc (Authentic), the General Counsel of the National Labor Relations Board, the Regional Director for Region 13 issued a complaint on March 17, 1982, against Authentic, alleging that Authentic had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended Copies of the charge and complaint and notice of hear- ing before an administrative law judge were duly served on Authentic and the Union The complaint alleges in substance that since about 1975 the Union has been the designated exclusive collec- tive-bargaining representative of the employees in an ap- propriate unit of Authentic's employees, and has been recognized as such by Authentic who has entered into successive collective-bargaining agreements with the Union, the most recent of which was effective from June 15, 1978, to January 31, 1982 It further alleges that since on or about December 18, 1981, Authentic failed to re- spond to the Union's repeated requests to bargain collec- tively with it as the designated exclusive collective-bar- gaining representative of the unit employees, has can- celed scheduled meetings and engaged in dilatory tactics designed to prevent good-faith bargaining, has failed and refused to furnish the Union with information concerning employee medical bills and Authentic's employee medi- cal insurance plan necessary for, and relevant to, the Union's performance of its function as exclusive collec- tive-bargaining representative of the represented employ- ees, has, on or about February 2, 1982, closed its facility and laid off four employees without giving prior notice or affording an opportunity to Union to bargain with re- spect to the effect of such conduct, and has, since on or about January 1, 1982, unilaterally altered the terms of the collective-bargaining agreement in effect between the parties to January 31, 1982, by failing and refusing to tender union dues deducted from employees' paychecks to the Union as required by the collective-bargaining agreement On March 23, 1982, Authentic timely filed its answer as Debtor and Debtor-in-Possession admitting in part the allegations of the complaint, but denying the various re- fusal-to-bargain allegations set forth above, and raising two affirmative defenses The first such defense recites that Authentic, on February 4, 1982, filed a voluntary petition pursuant to Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Central District of California and Respondent is therefore pro- hibited from paying any sums as may be due pursuant to the complaint The second affirmative defense alleges that the National Labor Relations Board has no jurisdic- tion because, pursuant to the provisions of Bankruptcy Code Section 362 (a), the complaint is an action to en- force an obligation for money arising prior to the filing of the Chapter 11 case Neither affirmative defense is le- gally sufficient to deprive the Board of Jurisdiction to decide the merits and fashion an appropriate remedy for any violations found Nathanson v NLRB, 344 U S 25 (1952), In re Be! Air Hospital, 611 F 2d 1248 (9th Cir 1979) Upon an amended charge filed April 5, 1982, by the Union, the General Counsel issued an amended com- plaint and notice of hearing April 15, 1982 The amended complaint alleges that Authentic Furniture Products, Inc , Debtor-in-Possession and Authentic Furniture Prod- 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ucts, Inc , Alter Egos and/or Single Employer (Re- spondent), had engaged in and was engaging 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 Copies of the amended charge and amended com- plaint and notice of hearing before an administrative law judge were served on all parties to this proceeding The amended complaint amends the name of Respond- ent in the manner set forth above, and adds allegations that Authentic Furniture Products, Inc , Debtor-in-Pos- session, has been duly designated by the United States Bankruptcy Court for the Central District of California as the debtor-in-possession of Authentic and is the suc- cessor in bankruptcy to Authentic, and that the two are alter egos and a single employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act The amended complaint also expands on Respondent's alleged failure and refusal to furnish the Union informa- tion about employee medical bills and Respondent's med- ical insurance plan by stating the factual basis for this al- legation, and alleges violations of Section 8(a)(5) addi- tional to those included in the initial complaint Respondent did not file an answer to the amended complaint within the 10 days specified by the National Labor Relations Board Rules and Regulations On June 14, 1982, the General Counsel issued a back- pay specification and notice of hearing before an admin- istrative law judge and duly served it on all parties Re- spondent filed no answer to the backpay specification On June 21, 1982, the General Counsel issued an order consolidating the unfair labor practice proceeding with the backpay proceeding for hearing, and duly served it on all parties The General Counsel wrote a letter to Respondent's attorney, dated October 14 and received October 19, ad- vising that, unless answer to the amended complaint and backpay specification were received by October 25, the General Counsel would file a motion for summary judg- ment Respondent has not yet filed an answer to the amended complaint or the backpay specification This case was scheduled for hearing before me at 10 a m on November 17, and acutally commenced at 10 25 a m on that day No representative of Respondent ap- peared The General Counsel represented on the record that she had left numerous telephone messages at the office of Respondent's counsel during preceding months with no response She further represented that on the morning of the hearing she called the office of Respond- ent's counsel and inquired if he or his partner would attend the hearing, and received a noncommittal answer from his secretary No representative of Respondent ap- peared during the course of the hearing, which closed at 11 40 a m the same day, or delivered any message to me regarding its intentions regarding appearance at the trial At 11 35 a m, the General Counsel represented that her earlier call to Respondent's attorney had generated no reply On November 18, I issued a notice of brief due date in writing, and served it on all parties Respondent has neither filed a brief nor otherwise contacted me The General Counsel did file a posttrial brief which I have considered At hearing the General Counsel adduced uncontro- verted evidence in support of portions of the initial com- plaint denied by Respondent, and moved for summary judgment on the additional matters alleged in the amend- ed complaint which are underned The General Counsel also moved for summary judgment on the backpay speci- fication based on the failure of Respondent to file any answer On the entire record' in this proceeding, I make the following Ruling on the Motion for Summary Judgment Section 102 20 of the Board's Rules and Regulations provides as follows The respondent shall, within 10 days from the service of the complaint, file an answer thereto The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown The amended complaint and notice of hearing served on Respondent specifically states that, unless an answer is filed to the amended complaint within 10 days from the service thereof, all of the allegations therein "shall be deemed to be admitted to be true and may be so found by the Board" Respondent has not filed an answer to the amended complaint Accordingly, the undenied allegations in the amended complaint are deemed to be admitted and are found to be true The General Counsel's Motion for Summary Judgment on these unanswered allegations is granted With respect to the backpay specification, Section 102 54 of the Board's Rules and Regulations, provides as follows (a) Filing and service of answer to specification — The respondent shall, within 15 days from the serv- ice of the specification, if any, file an answer there- to, an original and four copies shall be filed with the regional director issuing the specification, and a copy thereof shall immediately be served on any other respondent jointly liable (c) Effect of failure to answer or to plead specifical- ly and in detail to the specification —If the respond- ' After the hearing closed, the General Counsel filed a motion to sup plement the record by admitting into evidence a December 20, 1982 order of the U S Bankruptcy Court notifying the debtor, his creditors, and other parties in interest of a heanng on January 3, 1982, which credi- tors may attend and the debtor would attend for the purpose of being examined No objection having been received, the order is received in evidence as G C Exh 13 AUTHENTIC FURNITURE PRODUCTS 555 ent fails to file any answer to the specification within the time prescribed by this section, the Board may, either with or without taking evidence in support of the allegations of the specification and without notice to the respondent, find the specifica- tion to be true and enter such order as may be ap- propriate If the respondent files an answer to the specification but fails to deny any allegation of the specification in the manner required by subsection (b) of this section, and the failure so to deny is not adequately explained, such allegation shall be deemed to be admitted to be true, and may be so found by the Board without the taking of evidence supporting such allegation, and the respondent shall be precluded from introducing any evidence contro- verting said allegation Respondent was Advised in the backpay specification of the consequences of failing to deny the allegations therein The Board's Rules and Regulations also provide as fol- lows Sec 102 52 Initiation of proceedings, issuance of backpay specification, issuance of notice of hearing without backpay specification —After the entry of a Board order directing the payment of backpay or the entry of a court decree enforcing such a Board order, if it appears to the regional director that a controversy exists between the Board and a re- spondent concerning the amount of backpay due which cannot be resolved without a formal pro- ceeding, the regional director may issue and serve on all parties a backpay specification in the name of the Board The specification shall contain or be ac- companied by a notice of hearing before an adminis- trative law judge at a place therein fixed and at a time not less than 15 days after the service of the specification In the alternative and at his discretion, the regional director may, under the circumstances specified above, issue and serve on the parties a notice of hearing only, without the backpay specifi- cation, the hearing to be held before an administra- tive law judge, at a place therein fixed and at a time not less than 15 days ,after the service of the notice of hearing The Board's Statements of Procedure state Sec 101 16 Backpay proceedings —(a) After a Board order directing the payment of backpay has been issued on or after enforcement of such order by a court decree, if informal efforts to dispose of the matter prove unsuccessful, the regional director is then authorized at his discretion to issue a "backpay specification" in the name of the Board and a notice of hearing before an administrative law judge, both of which are served on the parties involved The specification sets forth computations showing gross and net backpay due and any other pertinent infor- mation The respondent must file an answer within 15 days of the receipt of the specification, setting forth a particularized statement of its defense It would appear, from the provisions of Sections 102 52 and 101 16, that the Regional Director is author- ized to issue a backpay specification only after the entry of a Board order or a court decree enforcing such an order Moreover, the Rules contemplated the existence of a controversy over the amount of backpay which cannot be resolved without a formal proceeding In this case there is as yet no Board order or court decree finding backpay liability, nor any controversy over the amount of backpay Against these consider- ations, it is asserted that the General Counsel has a policy, set forth in one of his internal memoranda, of consolidating an unfair labor practice complaint with a backpay specification where the respondent is involved in a bankruptcy proceeding The General Counsel cites a necessity of arriving at a liquidated amount of backpay to be claimed in bankruptcy proceedings in order to avoid the possibility of an estimated amount being ar- rived at by the bankruptcy court who might not wait "the several years it may take the Board to liquidate the claim" The General Counsel also urges that it is appar- ent the bankruptcy court will proceed to settle claims in the near future Finally, the General Counsel contends it should be assumed that, in view of Respondent's uncoo- perativeness, a backpay proceeding will likely be neces- sary, and that I should rule on the backpay specification if I find the violations alleged in the complaint On the foregoing, I am persuaded that the General Counsel's internal instructions and speculative arguments do not warrant a result contrary to the Board's estab- lished Rules and Regulations None of the conditions precedent to the issuance of a backpay specification have been met, 2 and the backpay specification was null and void ab initio Respondent therefore had no legal obliga- tion to answer it The motion for summary judgment on the backpay specification is denied, and I shall recom- mend that the backpay specification be severed and re- manded to the Regional Director for appropriate disposi- tion Returning to the unfair labor practice allegations, the record, consisting of admitted allegations, undemed alle- gations, and credible uncontroverted testimony and doc- umentary evidence supportive of the allegations, requires the following findings and conclusions I JURISDICTION AND STATUS OF THE RESPONDENT (a) Authentic Furniture Products, Inc has been at all times material herein a California corporation (b) At all times material herein, Authentic Furniture Products, Inc has maintained a facility located at 971 In- dustrial Drive, Aurora, Illinois, where it is engaged in the manufacture and sale of furniture and related prod- ucts (c) During the calendar year preceding the issuance of the amended complaint, a representative period, Authen- tic Furniture Products, Inc , in the course and conduct of its business operations, sold and shipped products 2 / note that my recommended Order on the unfair labor practices is not a Board order 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD valued in excess of $50,000 directly from its Aurora, Illi- nois facility to points located outside the State of Illinois (d) Since on or about February 4, 1982, Authentic Furniture Products, Inc , Debtor-in-Possession, has been duly designated by the United States Bankruptcy Court for the Central District of California as the debtor-in- possession of Authentic Furniture Products, Inc with full authority to continue operations and exercise all powers necessary to the administration of the business of Authentic Furniture Products, Inc (e) By virtue of the events described in paragraph (d), Authentic Furniture Products, Inc , Debtor-in-Posses- sion, is, and has been at all times material herein, a suc- cessor in bankruptcy to Authentic Furniture Products, Inc (f) By virtue of the acts and conduct described above in paragraphs (d) and (e), Respondent Authentic Furni- ture Products, Inc , Debtor-in-Possession, and Authentic Furniture Products, Inc are, and have been at all times material herein, alter egos and single employer within the meaning of the Act (g) Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATION The Union is a labor organization within the meaning of the Act III THE APPROPRIATE UNIT AND THE UNION'S REPRESENTATIVE STATUS All production, maintenance and warehouse employees and truck drivers at Respondent's facility located 971 In- dustrial drive, Aurora, Illinois, but excluding all office clerical employees, professional employees, technical and managerial employees, guards and supervisors as defined in the National Labor Relations Act constitute a unit ap- propriate for purpose of collective bargaining within the meaning of Section 9(b) of the Act Since about 1975, and at all times material herein, the Union has been the designated exclusive collective-bar- gaining representative of Respondent's employees in the unit described above, and since said date the Union has been recognized as such representative by Respondent Such recognition has been embodied in successive collec- tive-bargaining agreements the most recent of which is effective by its terms for the period June 15, 1978, to January 31, 1982 At all times since 1975, the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive represent- ative of the employees in 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 IV THE UNFAIR LABOR PRACTICES A Findings In early October 1981, Union Business Representative David Snyder met with Authentic Plant Manager Tom Rieder, former Plant Manager Al Bass, and chief negoti- ator Martin Meyers Meyers advised that things were very bad for Authentic, which had laid off some employ- ees, and a new contract would have to be negotiated since Authentic wanted to remain competitive In November, Snyder was advised by his chief stew- ard at Authentic that he had incurred hospital bills of $2000 which were not paid The following week Snyder and Robert Bingaman, the Charging Union's vice presi- dent, met with Rieder Bingaman asked Rieder if the above bills had been taken care of Rieder replied that within the previous year there had been an internal memorandum to the effect Respondent was going to a self-insured insurance plan He continued that all bills submitted by employees were forwarded to Respondent's main office in California The existing contract between the parties provided for the then existing medical insur- ance plan The Union had been given no notice prior to this meeting that Respondent was going or had gone to a self-insured plan After this meeting, a series of letters passed between the parties On December 18, Bingaman dispatched sepa- rate letters to Meyers and Rieder requesting copies of all documents relating to employee hospital benefits, all bills submitted by employees that had not been paid, and the disposition of each claim The letters also requested a written answer to the Union's proposal to extend the current agreement to January 31, 1982 The letter to Meyers stated that the Union was requesting "an appro- priate notice so we may negotiate the ramifications ef- fecting [sic] employment of our members" Respondent, by Rieder, sent a written acceptance of the contract extension to Snyder on December 30, 1981 Meyer replied to Bingaman's December 18 letter by letter of January 5, 1982, stating, inter aim, as follows Regarding your inquiry as to the closing of the Aurora plant, a decision has been made to move to a much smaller location in the immediate vicinity This new plant will require only two or three union employees As soon as the necessary lease has been executed, you will be advised of the exact location Employees not working will either be placed on a permanent layoff or on discharge depending on the terms of the union contract In the meantime, the information regarding unpaid medical claims is being accumulated and proper information is being forwarded to the Credit Managers Association so that all parties can be noti- fied regarding settlement of these claims, which the company recognizes as justly due under the terms of the contract Incidentally, it would be appreciated if you could send me any information you have regarding what benefits are due the employees under our present contract Again, I am sorry for the problems being caused by the financial condition of Authentic, and assure you every effort is being made to keep Authentic in operation AUTHENTIC FURNITURE PRODUCTS 557 The same day, January 5, Bingaman wrote to Meyers acknowledging Rieder's confirmation of the contract ex- tension, and further stating We would like to set up a time for our first nego- tiating session, that is convenient to both parties, with some understandings prior to the first meeting We will need from you, confirmation in writing on 1 Steps by the Company to clear up all past due hospital costs to Employees and former Employees 2 Who, known to the Company, has submitted bills to the Company for payment, hospital and doctor bills? - 3 How current hospital and doctor bills will be paid and by whom? 4 Date when Company dropped health insurance and supposedly went "self insured", as we were un- aware of this happening until November of 1981 5 If any hospital or doctor bills were ever paid after Company went "self-insured?" 6 Who and how many will make up the Compa- nies negotiating committee and who will be chief negotiator? 7 In conjunction with #3, how are current wages and dues checkoff and withholding taxes being paid? 8 Do Employees have unemployment and work- man's compensation paid on them and is it current? 9 If you are contemplating moving the manufac- turing facilities, we further request the location two weeks prior to any move The foregoing requested information is asked for, under law enforced by the National Labor Rela- tions Board, with the understanding that verbal ex- planation immediately with written communication to follow in return mail These are major questions that an understanding has to be reached so that negotiations can meaning- fully begin We wish to set up a negotiating session , in Aurora, Illinois, anytime during the week of Jan- uary 10th thru 16th We are looking for your reply in return mail as it is imperative that relations con- tinue, between the Union and Authentic Furniture, on the basis that we have mutually enjoyed over years of both good and bad times In response to Bingaman's requests, Respondent sent about 15 summaries of some medical expenses submitted to it by employees on which Respondent had determined there were payments to be made By letter to Rieder, dated January 27, 1982, Bingaman acknowledged receipt of the summaries, but protested this was not all he had requested, stating as follows As you are very aware of our request to have all documents turned over to us in regards to your Employees wages, working conditions and fringe benefits, (vacation, hospitalization, pension etc), you are also aware of the fact that documents that were given to us covered only nonpaid medical bills ac- crued by your Employees and did not pertain to the so called self-insured plan that the Company had undertaken We are very interested in the funding of this program and the procedure used in setting this up, and how it is funded under ER ISA or under approval of either the State of Illinois or California Respondent made no reply to this letter On January 28, 1982, Bingaman wrote Meyers con- firming a telephone conversation between them and stat- ing as follows This is a letter of confirmation of our phone con- versation on Tuesday January 26 1982 in which you called me to cancel our negotiating meeting scheduled for Wednesday January 27, 1982 and re- scheduled it for Thursday January 28, 1982 The reason for the rescheduling of the meeting was that your Company was to appear in Federal Court of Los Angeles to file a Chapter 11 bankrupt- cy Also in that conversation you suggested I con- tact our attorney in regards to our current collec- tive bargaining agreement, and how it would reflect in court proceedings In my return call to you it was understood that you would request the court to reaffirm the current working agreement, with all conditions in full force and effect for a period of six (6) months from docu- ment expiration date which was December 31, 1981, with the understanding it would extend contract until June 31, 1982 Another item that was discussed was the status of medical claims that were pending You stated that these bills would be put under a priority status in the bankruptcy hearings I also requested informa- tion as to cost of self-insured plan, on a per hour basis, to which you answered that it was now being worked on by your office 1 / In that same phone conversation I also requested the name and phone number of the trustee appoint- ed by the court and also the United States trustee assigned to the case along with a copy of the docu- ments of the court Your response to me was the court had not yet had a trustee, but would immedi- ately contact me when the trustees were designated and that I could expect a copy of the court action by the middle of the next week, which would be about February 3, 1982 Also, Marty, I was to expect a call from you on Wednesday January 27, 1982 from Kentucky, on when our meeting could be scheduled for Thursday January 28, 1982 when you expected to be in Aurora, Illinois I, to this time, have not received any call from you or information from either you or Tom Rieder, who by the way, has kept in touch with me over this matter in which he is very con- cerned, as to when we could get these negotiations started On January 31, Rieder called Snyder and arranged a brief meeting with Meyers at the airport on February 2 Bingaman and Snyder met with Meyers who advised Re- spondent might file a bankruptcy action, did not say whether Respondent would stay in business or move, 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and declined to discuss employee vacation and severance pay on the ground they would have to be discussed at a later date On February 4, Snyder was advised by the union steward and another employee that the plant was being shut down The Union received no prior notice of this shut down Respondent admits it shut down its facility on or about February 2, and laid off four employees The plant was not reopened Respondent filed its Chapter 11 action on February 4 Snyder called Rieder on February 8 or 9, and asked if the plant was going to stay in business and relocate and whether current employees would be employed at the new location Rieder said he did not know and would get back to Snyder Bingaman wrote Meyers on March 2 requesting a copy of the Chapter 11 filing There has been no re- sponse to the letter Bingaman credibly testified that Meyers agreed eight or nine times on the telephone to meet with Bingaman, and only met with Bingaman on one occasion, the Feb- ruary 2 airport meeting Meyers had earlier canceled scheduled negotiations meetings on November 19, 1981, and January 26, 1982 Respondent deducted union dues from employees wages for the months of December 1981 and January 1982 pursuant to the contract's checkoff clause, but has not remitted these moneys to the Union as the contract requires Conclusions Respondent's failure to respond to the Union's requests for negotiation meetings and its cancellation of numerous scheduled meetings display a lack of willingness to meet and bargain at reasonable times and places with the Union on matters concerning wages, hours, and working conditions, and indicate an unwillingness to bargain in good faith on the issues raised by its plant's closing and the Union's various requests for information A failure to bargain in good faith violates Section 8(a)(5) and (1) of the Act The information sought by the Union is probably rele- vant to mandatory subjects of bargaining and necessary to intelligent collective bargaining and the Union's func- tion in fulfilling its obligations as the collective-bargain- ing representative of Respondent's employees It is set- tled that an employer has an obligation under Section 8(a)(5) of the Act to provide the representative of its em- ployees with such information 3 The failure, and I con- clude refusal, of Respondent to furnish the information sought, or even proffer reasons for this failure, violated Section 8(a)(5) and (1) of the Act By failing to remit check-off dues to the Union for De- cember 1981 and January 1982 as the contract required,4 by unilaterally changing its health insurance plan without prior notice to the Union in direct violation of an express contract provision, 5 and by failing and refusing to bar- 3 Detroit Edison Co v NLRB, 440 U S 301, 303 (1979) 4 F M L Supply Inc , 258 NLRB 604, 615 (1981) 5 Antonio's Restaurant, 246 NLRB 833 840 (1979) Hassett Maintenance Corp , 260 NLRB 1211 (1982) gain over the effects of the plant closing, 6 Respondent in each instance violated Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW 1 Authentic Furniture Products, Inc , Debtor-in-Pos- session, and called Authentic Furniture Products, Inc , Alter Egos and/or Single Employer, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 All production, maintenance and warehouse em- ployees and truck drivers at Respondent's facility located at 971 Industrial Drive, Aurora, Illinois, but excluding all office and clerical employees, professional employees, technical and managerial employees, guards and supervi- sors as defined in the National Labor Relations Act con- stitute a unit appropriate for purposes of collective bar- gaining within the meaning of Section 9(b) of the Act 4 Since about 1975, and at all times material herein, the Union has been the designated exclusive collective- bargaining representative of Respondent's employees in the unit described above 5 By failing to respond to telephone calls and letter from the Union, and by cancelling scheduled negotiation meetings, Respondent has refused to bargain in good faith with the Union, and thereby violated Section 8(a)(5) and (1) of the Act 6 By failing and refusing to furnish the Union request- ed information necessary and relevant to the Union's per- formance of its function as exclusive collective-bargain- ing representative of the employees in the unit set forth above in paragraph 3 of this section, Respondent violated Section 8(a)(5) and (1) of the Act 7 By failing and refusing to bargain with the Union over the effects of plant closure on the unit employees described above, Respondent violated Section 8(a)(5) and (1) of the Act '8 By failing and refusing to remit to the Union the dues deducted from its employees' wages pursuant to an existing collective-bargaining agreement, Respondent violated Section 8(a)(5) and (1) of the Act 9 By unilaterally discontinuing the health insurance plan provided for in the existing collective-bargaining agreement and instituting a new health insurance plan without prior notice or opportunity to bargain on these changes afforded the Union, Respondent violated Section 8(a)(5) and (1) of the Act THE REMEDY Having found that Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, my recommended Order will require that it cease and desist therefrom, and take cer- tain affirmative action designed to effectuate the policies of the Act As a result of Respondent's unlawful failure to bargain about the effects of their partial cessation of operations, the terminated employees have been denied an opportu- 6 Soule Glass Co v NLRB, 652 F 2d 1055, 1085 (1st Cir 1981) AUTHENTIC FURNITURE PRODUCTS 559 nity to bargain through their collective-bargaining repre- sentatives at a time when Respondent might still have been in need of their services, and a measure of balanced bargaining power existed Meaningful bargaining cannot be assured until some measure of economic strength is restored to the Unions A bargaining order alone, there- fore, cannot serve as an adequate remedy for the unfair labor practice committed Accordingly, I shall require, in order to effectuate the purposes of the Act, Respondent to bargain with the Union concerning the effects on its requirement 7 de- signed both to make whole the employees for losses suf- fered as a result of the violation and to recreate in some practicable manner a situation in which the parties' bar- gaining is not entirely devoid of economic consequences for Respondent Thus, Respondent shall pay employees backpay at the rate of their normal wages when last in Respondent's employ from 5 days after the date of the Board's Order until the occurrence of the earliest of the following conditions (1) the date Respondent bargains to agreement with the Union on those subjects pertaining to the effects of the closing of Respondent's operations on its employees, (2) a bona fide Impasse in bargaining, (3) the failure of the Union to request bargaining within 5 days of the Board's Order, or to commence negotiations within 5 days of Respondent's notice of their desire to bargain with the Union, or (4) the subsequent failure of the Union to bargain in good faith, but in no event shall the sum to any of these employees exceed the amount he or she would have earned as wages from February 2, 1982, the date on which Respondent terminated the Aurora, Illinois operations, to the time he or she secured equivalent employment elsewhere, or the date on which 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 normal rate of their normal wages when last in Respondent's employ Respondent shall also be required to make unit employees whole for any loss of reimbursement for medical costs they may have suffered as a result of Respondent's unilateral change in health benefit insurance Interest on all such sums shall be paid in the manner prescribed in Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) To effectuate further the policies of the Act, Respond- ent shall be required to establish a preferential hiring list of all terminated unit employees following the system of seniority provided for in the collective-bargaining agree- ment and, if Respondent ever resumes operations any- where in the Aurora, Illinois area, it shall be required to offer reinstatement to these employees If, however, Re- spondent resumes its Aurora operation, Respondent shall be required to offer unit employees reinstatement to their former or substantially equivalent positions Furthermore, in view of the fact that Respondent's fa- cility is no longer in operation and its former employees may be in different locations, I shall order Respondent to mail each of their employees employed on the date they 7 Transmarine Navigation Corp, 170 NLRB 389 (1968) ceased operations copies of the attached notice signed by Respondent Respondent shall also be required to transmit to the Union the union dues withheld from unit employee wages during December 1981 and January 1982, with in- terest computed thereon pursuant to Florida Steel, supra and Isis Plumbing, supra On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 8 ORDER The Respondent, Authentic Furniture Products, Inc , Debtor-in-Possession, and Authentic Furniture Products, Inc , Alter Egos and/or Single Employer, their officer, agents, successors, and assigns, shall 1 Cease and desist from (a) Failing and refusing to bargain with Fox River District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the ex- clusive representative of all employees in the appropriate unit set forth below with respect to the effect on said employees of the decision to close the Aurora, Illinois fa- cility The appropriate unit is All production, maintenance and warehouse em- ployees and truck drivers at Respondent's facility located at 971 Industrial Drive, Aurora, Illinois, but excluding all office and clerical employees, profes- sional employees, technical and managerial employ- ees, guards and supervisors as defined in the Nation- al Labor Relations Act (b) Failing and refusing to furnish the Union requested information relevant and necessary to intelligent collec- tive bargaining and the Union's function in fulfilling its obligations as the collective-bargaining representative of Respondent's employees (c) Failing and refusing to meet and bargain in good faith with the Union at reasonable times and places (d) Failing and refusing to remit to the Union those union dues deducted from employee wages in December 1981 and January 1982 pursuant to contract provision (e) Failing and refusing to apply the contractual health insurance plan to employee claims that would have been covered by said plan had Respondent not substituted an- other plan therefor (0 Making changes in matters related to the wages, hours, and working conditions of unit 'employees without first giving their collective-bargaining representative prior notice of these changes and a reasonable opportuni- ty to bargain on them (g) 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 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur poses 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Take the following affirmative action which will ef- fectuate the policies of the Act (a) On request, bargain in good faith with the Union as the exclusive bargaining representative of all employees in the aforesaid appropriate unit with respect to the effect on its employees of the decision to terminate the operations in Aurora, Illinois, and, if any understanding is reached, embody it in a signed agreement (b) Pay the terminated employees their normal wages for the period set forth in the remedy section of this de- cision, and reimburse them for losses suffered by virtue of the change of insurance plans as set forth in the remedy section (c) Establish a preferential hiring list of all employees in the appropriate unit, following the system of seniority provided for under the collective-bargaining contract with the Union and, if operations are ever resumed any- where in the Aurora, Illinois area, offer reinstatement to those employees If, however, Respondent resumes its operations at the Aurora, Illinois facility, it shall offer all those in the appropriate unit reinstatement to their former or substantially equivalent positions (d) Transmit to the Union the union dues money with- held from unit employee wages during December 1981 and January 1982 (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amounts of backpay due under the terms of this Order (f) Mail an exact copy of the attached notice marked "Appendix" 9 to the Union and to all employees em- ployed by Respondent in the above-described appropri- ate unit at the Aurora, Illinois facility Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by their authorized repre- sentative, shall be mailed immediately upon receipt as herein directed (g) Notify the Regional Director in writing within 20 days from the date of theis Order what steps Respondent has taken to comply IT IS FURTHER ORDERED that the backpay specification issued June 14, 1982, be severed from this proceeding and remanded to the Regional Director for appropriate disposition consistent with this decision 9 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 tonal 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"