Badger Packaging Corporation

370 NLRB No. 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Badger Packaging Corporation and United Steel, Pa- per and Forestry, Rubber, Manufacturing, En- ergy, Allied Industrial and Service Workers In- ternational Union, AFL‒CIO‒CLC. Cases 18‒ CA‒248224, 18‒CA‒256426 and 18‒CA‒257051 July 31, 2020 DECISION AND ORDER BY CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL The General Counsel seeks a default judgment in this case on the ground that Badger Packaging Corporation (the Respondent) has failed to file an answer to the com- plaint. Upon charges and amended charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Interna- tional Union, AFL‒CIO‒CLC (the International Union) on behalf of its Local 2‒00598 (Local Union) (collectively referred to as “the Union”) on various dates from Septem- ber 13, 2019, through April 8, 2020, the General Counsel issued a consolidated complaint and notice of hearing on April 17, 2020, against the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Act.1 The Respond- ent failed to file an answer. On May 19, 2020, the General Counsel filed with the National Labor Relations Board a motion for default judg- ment. Thereafter, on June 3, 2020, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that unless an answer was received by May 1, 2020, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undis- puted allegations in the General Counsel’s motion 1 The complaint states that the charge and first amended charge in Case 18‒CA‒248224 were served on the Respondent on September 16 and September 20, 2020, respectively. We correct these inadvertent er- rors to read 2019, as reflected on the respective affidavits of service. 2 The General Counsel’s motion states that on May 5, 2020, Subre- gion 30 advised the Respondent’s president, James Anderson, that the disclose that Subregion 30, by letter served via UPS, cer- tified and regular mail, and email dated May 5, 2020, ad- vised the Respondent that unless an answer was received by May 12, 2020, the Region may pursue a default judg- ment.2 Nevertheless, the Respondent failed to file an an- swer. In the absence of good cause being shown for the failure to file an answer, we deem the allegations in the complaint to be admitted as true, and we grant the General Counsel’s motions to transfer case to and continue proceedings be- fore the Board and for default judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a corpo- ration with an office and place of business in West Bend, Wisconsin (the Respondent’s facility) and has been en- gaged in the manufacture of corrugated fiber board pack- aging. In conducting its operations during the calendar year ending December 31, 2019, the Respondent sold and shipped from its West Bend, Wisconsin, facility goods valued in excess of $50,000 directly to points outside the State of Wisconsin. We find that the Respondent has been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times, the International Union and the Local Union have been labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES 1. At all material times, James Anderson held the posi- tion of the Respondent’s president and has been a super- visor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. 2. The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time employees employed by the Employer in the following classifica- tions: Flexo Folder Glue Operator, Flexo Folder Glue Helper, Printer/Slotter Operator, Printer/Slotter Helper, Rotary Die Cutter Operator, Rotary Die Cutter Helper, Respondent had until May 5, 2020 to file and serve its answer to the complaint. However, the record indicates that the Subregion’s letter re- quested that the Respondent file an answer by May 12, 2020. We correct this inadvertent error. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Autoplaten Operator, Autoplaten Helper, Die Mounter, Finishing Operator, Bander Operator, Shipping/Dis- patch, Material Handler, Truck Driver, Maintenance, Maintenance Helper, and Lead Man Adder. 3. At all material times, the Respondent has recognized the Union as the exclusive collective-bargaining repre- sentative of the unit. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which was effective from September 1, 2017, to August 31, 2019. 4. At all material times, based on Section 9(a) of the Act, the Union has been the designated exclusive collec- tive-bargaining representative of the unit. 5. The Union, on the dates and by the methods listed below, requested that the Respondent bargain collectively with the Union as the exclusive collective-bargaining rep- resentative of the unit for a successor collective-bargain- ing agreement: May 15, 2019 by certified letter July 2019 by voicemail (on three unknown dates) August 2, 2019 in person August 8, 2019 by certified letter August 26, 2019 by certified letter 6. Between May 15, 2019, and September 30, 2019, the Respondent failed and refused to respond to the Union’s requests to bargain. 7. Between May 15, 2019, and October 10, 2019, the Respondent failed and refused to bargain with the Union as the exclusive collective-bargaining representative of the unit. 8. On October 10, 2019, the Respondent met and bar- gained with the Union, resulting in a signed side agree- ment. This agreement provided, among other things, that the parties would extend the collective-bargaining agree- ment and postpone negotiations for a successor collective- bargaining agreement until March 2020, with an agree- ment renewal set for June 2020. The agreement also pro- vided that the Respondent would make whole 401(k) par- ticipants by the end of November 2019. 9. The Union, on the dates and by the methods listed below, requested that the Respondent bargain collectively with the Union as the exclusive collective-bargaining rep- resentative of the unit for a successor collective-bargain- ing agreement, pursuant to the side agreement described above: February 26, 2020 by electronic mail March 9, 2020 by electronic mail 10. Since February 26, 2020, the Respondent has failed and refused to respond to and bargain with the Union as the exclusive collective-bargaining representative of the unit. 11. Since about April 2019, the Respondent unilater- ally, and without agreement of the Union, has failed to re- mit dues to the International Union despite having de- ducted dues from employee paychecks pursuant to valid dues checkoff authorizations. 12. Since at least June 2019, the Respondent unilater- ally, and without agreement of the Union, has failed to: (a) Deposit 401(k) contributions that were deducted from employee paychecks; (b) Match 50 percent of the first 5 percent of pay con- tributed by employees to their 401(k) accounts; and (c) Make a discretionary contribution of $300 per quar- ter for employees who have worked a minimum of 250 hours during the quarter and have been employed by or retained seniority with the Respondent on the last day of the quarter. 13. The subjects set forth above in paragraphs 11 and 12 relate to wages, hours, and other terms and conditions of employment of the unit and are mandatory subjects for the purposes of collective bargaining. 14. The Respondent engaged in the conduct described above in paragraphs 11 and 12 without prior notice to the Union and without providing the Union an opportunity to bargain with the Respondent with respect to this conduct. 15. About April 2019, the Respondent failed to con- tinue in effect all the terms and conditions of the agree- ment described above in paragraphs 2 through 4 by failing to remit dues to the International Union despite having de- ducted dues from employee paychecks pursuant to valid dues checkoff authorizations. 16. About June 2019, the Respondent failed to continue in effect all the terms and conditions of the agreement de- scribed in paragraphs 2 through 4 by failing to: (a) Deposit 401(k) contributions that were deducted from employee paychecks; (b) Match 50 percent of the first 5 percent of pay con- tributed by employees to their 401(k) accounts; and (c) Make a discretionary contribution of $300 per quar- ter for employees who have worked a minimum of 250 hours during the quarter and have been employed by or retained seniority with the Employer on the last day of the quarter. 17. The terms and conditions of employment described in paragraphs 15 and 16 are mandatory subjects for the purposes of collective bargaining and the Respondent en- gaged in the conduct without the Union’s consent. 18. Since about May 15, 2019, the Union has requested in writing that the Respondent furnish the Union with the BADGER PACKAGING CORP. 3 information set forth in Exhibit A of the complaint to pre- pare for contract negotiations.3 19. Since about August 26, 2019, the Union has re- quested in writing that the Respondent furnish the Union with the following information: an explanation of the fre- quency with which dues are submitted; the last transaction in which dues were submitted with some type of receipt or verification; a list of all employees who participate in the Company 401(k) plan; how much each employee contrib- utes to the 401(k) plan; how much the company contrib- utes to each employee 401(k) plan; and when the last con- tribution was made to each 401(k) plan participant. 20. The information requested by the Union, as de- scribed above in paragraphs 18 and 19, is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit. 21. Since about May 15, 2019, the Respondent, by President James Anderson, has failed and refused to fur- nish the Union with the information requested by it. CONCLUSIONS OF LAW By the conduct described above in paragraphs 5 through 14 and 18 through 21, the Respondent has been failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining representative of its em- ployees in violation of Section 8(a)(5) and (1) of the Act. By the conduct described above in paragraphs 15 through 17, the Respondent has been failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining representative of its employees within the meaning of Section 8(d) of the Act in violation of Section 8(a)(5) and (1) of the Act. The Respondent’s unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain 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. Specifically, having found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain collectively and in good faith with the Union as the exclusive collective-bargaining representative of the employees in the unit by failing and refusing to respond to the Union’s requests to bargain and by failing and refusing to bargain with the Union, we shall order the Respondent, on request, to meet and bargain 3 Exhibit A consists of a standard form entitled “Contract Negotiation Information Request.” The form seeks data concerning numbers, hours, and wages of hourly employees, as well as information about the cover- age and costs of their insurance, pension, and 401(k) benefits. collectively and in good faith with the Union as the exclu- sive collective-bargaining representative of the unit, and, if an understanding is reached, to embody the understand- ing in a signed agreement. Having found that the Respondent has violated Section 8(a)(5) and (1) by making unilateral changes to the terms and conditions of employment of bargaining unit employ- ees, we shall order the Respondent to rescind those changes upon request. Having found that the Respondent unilaterally failed to remit dues to the International Union, despite having deducted the dues from employee paychecks pursuant to valid dues checkoff authorizations, we shall order the Respondent to make the Union whole for all dues that would have been paid but for the Respond- ent’s unlawful conduct by remitting to the International Union the dues deducted from about April 2019 until the expiration of the collective-bargaining agreement as ex- tended4 and to make employees whole for any expenses ensuing from the Respondent’s failure to make the remit- tances as set forth in Kraft Plumbing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.1981), the amounts to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), with interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). We shall fur- ther order the Respondent to return to employees any dues deducted but not remitted to the Union after the expiration of the extended contract, with the amounts and interest calculated in the manner set forth above.5 Additionally, having found that the Respondent failed to continue in effect all the terms and conditions of the 2017‒2019 collective-bargaining agreement in violation of Section 8(a)(5) and (1) by failing since June 2019 to deposit 401(k) contributions that were deducted from em- ployee paychecks; to match 50 percent of the first 5 per- cent of pay contributed by employees to their 401(k) ac- counts; and to make a discretionary contribution of $300 per quarter for employees who have worked a minimum of 250 hours during the quarter and have been employed by or retained seniority with the Respondent on the last day of the quarter, as required by the 2017–2019 collec- tive-bargaining agreement, we shall order the Respondent to rescind its unlawful actions and to make whole its unit employees by making all such delinquent fund contribu- tions on behalf of unit employees that have not been made since June 2019, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 4 See Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, 368 NLRB No. 139 (2019). 5 See Betteroads Asphalt, LLC, 369 NLRB No. 114 (2020). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 NLRB 1213, 1216 fn. 7 (1979). The Respondent shall also reimburse the employees for any expenses ensuing from its failure to make the required contributions, as set forth in Kraft Plumbing & Heating, supra, the amounts to be computed in the manner set forth in Ogle Protection Ser- vice, supra, with interest as prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. We shall order the Respondent to compensate the unit employees for any adverse tax consequences of receiving lump-sum backpay awards and to file a report with the Re- gional Director for Region 18 allocating the backpay award to the appropriate calendar years for each em- ployee, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). Finally, having found that the Respondent violated Sec- tion 8(a)(5) and (1) by failing and refusing to furnish the Union with relevant and necessary information, we shall order the Respondent to furnish to the Union, in a timely manner, the information requested on May 15 and August 26, 2019. ORDER The National Labor Relations Board orders that the Re- spondent, Badger Packaging Corporation, West Bend, Wisconsin, its officers, agents, successors, and assigns shall: 1. Cease and desist from (a) Failing and refusing to bargain with United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Al- lied Industrial and Service Workers International Union, AFL–CIO, CLC, on behalf of its Local 2–00598, as the exclusive collective-bargaining representative of the em- ployees in the bargaining unit. (b) Unilaterally changing the terms and conditions of employment of its unit employees. (c) Failing and refusing to continue in effect all the terms and conditions of the collective-bargaining agree- ment by failing to make required benefit fund contribu- tions. (d) Refusing to bargain collectively with the Union by failing and refusing to furnish the Union with requested information that is relevant and necessary to the Union’s performance of its functions as the exclusive collective- bargaining representative of the Respondent’s unit em- ployees. (e) 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. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All regular full-time and regular part-time employees employed by the Employer in the following classifica- tions: Flexo Folder Glue Operator, Flexo Folder Glue Helper, Printer/Slotter Operator, Printer/Slotter Helper, Rotary Die Cutter Operator, Rotary Die Cutter Helper, Autoplaten Operator, Autoplaten Helper, Die Mounter, Finishing Operator, Bander Operator, Shipping/Dis- patch, Material Handler, Truck Driver, Maintenance, Maintenance Helper, and Lead Man Adder. (b) Before implementing any changes in wages, hours, or other terms and conditions of employment of bargain- ing unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining repre- sentative of unit employees. (c) Rescind the changes in the terms and conditions of employment of its unit employees that were unilaterally implemented about April and June 2019. (d) Continue in effect all the terms and conditions of employment contained in its collective-bargaining agree- ment effective September 1, 2017, to August 31, 2019 as extended. (e) Make the Union whole by remitting to the Interna- tional Union dues that were deducted from unit employ- ees’ paychecks but not remitted from April 2019 until the expiration of the collective-bargaining agreement as ex- tended, with interest, in the manner set forth in the remedy section of this decision. (f) Return to employees any dues deducted but not re- mitted to the Union after the expiration of the extended contract, with interest, in the manner set forth in the rem- edy section of this decision. (g) Make whole its unit employees by making all con- tractually required benefit fund contributions that have not been made since June 2019, pursuant to the 2017‒2019 collective-bargaining agreement as extended, with inter- est, in the manner set forth in the remedy section of this decision. (h) Make unit employees whole for any loss of earnings and other benefits suffered as a result of the Respondent’s failure to remit dues and make benefit fund contributions, with interest, in the manner set forth in the remedy section of this decision. (i) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 18, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. BADGER PACKAGING CORP. 5 (j) Furnish to the Union in a timely manner the relevant and necessary information requested on May 15 and Au- gust 26, 2019. (k) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amount of backpay due under the terms of this Order. (l) Post at its West Bend, Wisconsin facility copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Re- gion 18, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (m) Within 21 days after service by the Region, file with the Regional Director for Region 18 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. July 31, 2020 ______________________________________ John F. Ring, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ William J. Emanuel, Member 6 If the facility involved in these proceedings is open and accessible to a substantial complement of employees and members, the notices must be posted within 14 days after service by the Region. If the facility in- volved in these proceedings is closed due to the Coronavirus pandemic, the notices must be posted within 14 days after the facility reopens and a substantial complement of employees have regained access, and the no- tices may not be posted until a substantial complement of employees have regained access. Any delay in the physical posting of paper notices (SEAL) 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 vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT fail and refuse to bargain with United Steel, Paper and Forestry, Rubber, Manufacturing, En- ergy, Allied Industrial and Service Workers International Union, AFL–CIO, CLC on behalf of its Local 2‒00598 (collectively “the Union”), as the exclusive collective-bar- gaining representative of our employees in the bargaining unit. WE WILL NOT change your terms and conditions of em- ployment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT fail and refuse to continue in effect all the terms and conditions of the collective-bargaining agree- ment by failing to make required benefit fund contribu- tions. WE WILL NOT refuse to bargain collectively with the Un- ion by failing and refusing to furnish it with requested in- formation that is relevant and necessary to the Union’s performance of its functions as the exclusive collective- bargaining representative of our unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union as the ex- clusive collective-bargaining representative of our also applies to the electronic distribution of the notice if the Respondent customarily communicates with its employees by electronic means. 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Rela- tions Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 employees in the following appropriate unit concerning terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement: All regular full-time and regular part-time employees employed by us in the following classifications: Flexo Folder Glue Operator, Flexo Folder Glue Helper, Printer/Slotter Operator, Printer/Slotter Helper, Rotary Die Cutter Operator, Rotary Die Cutter Helper, Au- toplaten Operator, Autoplaten Helper, Die Mounter, Finishing Operator, Bander Operator, Shipping/Dis- patch, Material Handler, Truck Driver, Maintenance, Maintenance Helper, and Lead Man Adder. WE WILL, before implementing any changes in wages, hours, and other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representa- tive of our employees in the bargaining unit. WE WILL rescind the changes in your terms and condi- tions of employment that were implemented about April and June 2019. WE WILL continue in effect all the terms and conditions of employment contained in the collective-bargaining agreement effective September 1, 2017, to August 31, 2019 as extended. WE WILL remit to the International Union dues that were deducted from your paychecks pursuant to valid dues checkoff authorizations and that have not been remitted from April 2019 until the expiration of our collective-bar- gaining agreement as extended, with interest. WE WILL return to you union dues that we deducted from your paychecks but did not remit to the Union after the collective-bargaining agreement as extended expired, with interest. WE WILL make you whole for your loss of earnings and other benefits suffered as a result of our unlawful cessa- tion of dues remittance to the Union and contractually re- quired benefit contributions, with interest. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 18, within 21 days of the date the amount of back- pay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL furnish to the Union in a timely manner the relevant and necessary information requested on May 15 and August 26, 2019. BADGER PACKAGING CORPORATION The Board’s decision can be found at www.nlrb.gov/case/18-CA-248224 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273‒1940.