Cleartex Co.

CLEARTEX CO. Cleartex Co. and Teamsters Local 837, Industrial Workers Union, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 4-CA-10852 September 9, 1980 DECISION AND ORDER Upon a charge filed on February 8, 1980, by Teamsters Local 837, Industrial Workers Union, a/ w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Clear- tex Co., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 4, issued a com- plaint and notice of hearing on March 21, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(l) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. Re- spondent failed to file any answer to the complaint and the time for said filing under the Board's Rules and Regulations expired on April 3, 1980. On June 10, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 12, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a response to the Notice To Show Cause. On June 26, 1980, counsel for the General Counsel submitted a Supplement to Motion for Summary Judgment, in which it was noted that an answer to the complaint was received by Region 4 on June 9, 1980. Respondent, however, did not file a certifi- cate of service indicating that the answer had been filed with the other parties. The answer was re- ceived after the date on which General Counsel had forwarded the Motion for Summary Judgment but I day before the Board received the motion on June 10, 1980. In its supplemental motion, General Counsel asserts that Respondent did not set forth an explanation for its untimely answer and, more- over, there was no showing that the answer was served on others required to be served. According- ly, counsel for the General Counsel submits that its Motion for Summary Judgment should be granted. Upon the entire record in this proceeding, the Board makes the following: 252 NLRB No. 7 Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides: The respondent shall, within 10 days from the service of the complaint, file an answer there- to. 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 complaint and notice of hearing served on Respondent on March 21, 1980, specifically states that unless an answer to the complaint was filed within 10 days from the service thereof "all of the allegations in the complaint shall be deemed to be admitted true and may be so found by the Board." As noted above, Respondent filed an untimely answer, over 2 months after the deadline set for filing, Respondent offered no explanation for its untimely answer, and Respondent did not respond to the Notice To Show Cause. No good cause to the contrary having been shown, and in accord- ance with the rules set forth above, the allegations of the complaint are deemed to be admitted and are found to be true. Accordingly, we grant the General Counsel's Motion for Summary Judg- ment. ' On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a Pennsylvania corporation engaged in the manufacture and nonretail sale of plastic products from its 1730 North Fifth Street, Philadelphia, Pennsylvania, facility. During the past year, in the course and conduct of its business operations, Re- spondent sold and shipped products valued in excess of $50,000 directly to points located outside the Commonwealth of Pennsylvania. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material i Edwin D Chapman d/b/a Day-Ti Construction Company, 249 NLRB 1095 (198(). 37 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES With respect to the unfair labor practices, the complaint alleges in substance that since on or about February 26, 1969, and at all times material herein, Respondent has recognized the Union as the exclusive collective-bargaining representative of Respondent's employees in a unit consisting of all production and maintenance employees em- ployed by Respondent at its 1730 North Fifth Street, Philadelphia, Pennsylvania, facility, a unit which is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Such recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective by its terms for the period March 26, 1979, to March 25, 1982. The Union by virtue of Section 9(a) of the Act has been, and is, the exclusive representative of the em- ployees in the unit described above for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The complaint fur- ther alleges that on or about February 4, 1980, Re- spondent terminated its business operations and since such time has failed and refused, and contin- ues to fail and refuse, to bargain with the Union concerning the effects of the termination. Accordingly, we find that Respondent, by the acts described above and by each of said acts, has engaged in, and is now engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and (5) and Section 2(6) and (7) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom, and from like or related conduct, and that it take certain affirmative action to effectuate the policies of the Act. We have found specifically that Respondent has violated Section 8(a)(1) and (5) by its failure to bargain about the effects of terminating its business oper- ations. As a result of Respondent's unlawful failure to bargain about such effects, the employees have been denied an opportunity to bargain through their contractual representative at a time when Re- spondent was still 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 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 Re- spondent to bargain with the Union concerning the effects of its decision to terminate its business oper- ations at its 1730 North Fifth Street, Philadelphia, Pennsylvania, facility, and we shall include in our Order a limited backpay requirement2 designed both to make whole the employees for losses, if any, suffered as a result of the violation and to re- create in some practicable manner a situation in which the Union's bargaining position is not entire- ly devoid of economic consequences for Respond- ent. We shall do so in this case by requiring Re- spondent to pay backpay to its employees in a manner similar to that required in Transmarine Navigation Corporation and its Subsidiary, Interna- tional Terminals, Inc., 170 NLRB 389 (1968). Thus, Respondent shall pay employees backpay at the rate of their normal wages when last in Respond- ent's employ from 5 days after the date of this De- cision and Order until the occurrence of the earli- est of the following conditions: (1) the date Re- spondent bargains to agreement with the Union on those subjects pertaining to the effects of the clos- ing of Respondent's 1730 North Fifth Street, Phila- delphia, Pennsylvania, facility on unit employees; (2) a bona fide impasse in bargaining; (3) the Union's failure to request bargaining within 5 days of this Decision's issuance or to commence negotia- tions within 5 days of Respondent's notice of its desire to bargain with the Union; or (4) the Union's 2 We have indicated that backpay orders are appropriate means of re- medying 8(a)(5) violations of the type involved herein, even where such violations are unaccompanied by a discriminatory shutdown of oper- ations. Cf. Roval Plating and Polishing Co., Inc., 148 NLRB 545, 548 (1964), and cases cited therein. 38 CLEARTEX CO. subsequent failure to bargain in good faith; but in no event shall such sums paid to any of these em- ployees exceed the amount each would have earned as wages from February 4, 1980, the date on which Respondent terminated its business oper- ations, to the time they secured equivalent employ- ment 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 rate of their normal wages when last in Respondent's employ. Backpay shall be based upon earnings which the terminated employees would normally have re- ceived during the applicable period, less any net in- terim earnings, and shall be computed on a quarter- ly basis in the manner set forth in F. W Woolworth Company, 90 NLRB 289 (1950), with interest there- on computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 3 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Respondent, Cleartex Co., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 837, Industrial Workers Union, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its 1730 North Fifth Street, Philadelphia, Pennsylvania, facility consti- tute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since on or about February 26, 1969, the above-named labor organization has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing on or about February 4, 1980, and at all times thereafter, to bargain col- lectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. a See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). Member Jenkins continues to adhere to his dissent in Olympic Medical Corporation. 250 NLRB No. 11 (1980), with respect to he computation of interest on backpay 6. By the aforesaid refusal to bargain as de- scribed in section III, above, Respondent has inter- fered with, restrained, and coerced, and is interfer- ing with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Cleartex Co., Philadelphia, Pennsylvania, its offi- cers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Failing and refusing to bargain with Team- sters Local 837, Industrial Workers Union, a/w In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive collective-bargaining representative of all employees in the appropriate unit described below, concerning the effects on said employees of its de- cision to terminate business operations at its 1730 North Fifth Street, Philadelphia, Pennsylvania, fa- cility, on or about February 4, 1980. The appropri- ate unit is: All production and maintenance employees employed by the Respondent at its 1730 North 5th Street, Philadelphia, Pennsylvania, facility. (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 which the Board finds will effectuate the policies of the Act: (a) Make whole production and maintenance em- ployees employed by Respondent at its 1730 North Fifth Street, Philadelphia, Pennsylvania, facility by paying them their normal wages for the period set forth in this Decision and Order. (b) Recognize and, upon request, bargain collec- tively with the above-named labor organization as exclusive representative of the aforesaid employees, with respect to the effects on such employees of its decision to terminate business operations, and reduce to writing any agreement reached as a result of such bargaining. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- 39 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Mail an exact copy of the attached notice marked "Appendix" 4 to Teamsters Local 837, In- dustrial Workers Union, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and to all production and maintenance employees employed by the Employer at its 1730 North Fifth Street, Philadelphia, Penn- sylvania, facility; and post at such facility, or any other facility to which it has subsequently moved, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by its authorized representative, shall be mailed immediately upon receipt thereof, as herein directed. (e) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT fail and refuse to bargain with Teamsters Local 837, Industrial Workers Union, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive repre- sentative of our employees in the appropriate unit described below concerning the effects of our decision to terminate our business oper- ations on all production and maintenace em- ployees employed at out 1730 North Fifth Street, Philadelphia, Pennsylvania, facility. The appropriate unit is: All production and maintenance employees employed by us at our 1730 North 5th Street, Philadelphia, Pennsylvania, facility. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain collectively with Teamsters Local 837, Industrial Workers Union, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, with respect to the effects of our decision to terminate our business oper- ations on all production and maintenance em- ployees employed at our 1730 North Fifth Street, Philadelphia, Pennsylvania, facility, and reduce to writing any agreement reached as a result of such bargaining. WE WILL make whole all production and maintenance employees employed at our 1730 North Fifth Street, Philadelphia, Pennsylvania, facility for any loss of pay they may have suf- fered as a result of our failure to bargain about the effect of the termination of our facility in Philadelphia, Pennsylvania, for the period de- cided by the National Labor Relations Board, with interest. CLEARTEX CO. 40