Anotech, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 2003

339 N.L.R.B. 49 (N.L.R.B. 2003)

OTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other f ormal errors so that corrections can
be included in the bound volumes.
Ancotech, Inc. and International Union, United
Automobile, Aerospace and Agricultural Im­
plement Workers of America (UAW), AFL–
CIO. Case 7–CA–45077
June 27, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has withdrawn its
answer to the complaint and has not filed an answer to
the amended complaint. Pursuant to a charge filed by the
Union on April 26, 2002, the General Counsel issued the
complaint on June 25, 2002, against Ancotech, Inc., the
Respondent, alleging that it has violated Section 8(a)(1)
and (5) of the Act. On July 9, 2002, the Respondent filed
an answer to the complaint. However, on September 13,
2002, the Respondent withdrew its answer.1 Thereafter,
on September 18, 2002, the Ge neral Counsel issued an
amended complaint, to which the Respondent has not
filed an answer.
On November 13, 2002, the General Counsel filed a
Motion for Default Summary Judgment with the Board.
On November 15, 2002, the Board issued an order trans­
ferring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re­
spondent filed no response. The allegations in the mo­
tion are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint and amended com­
plaint affirmatively state that unless an answer is filed
within 14 days of service, all the allegations therein will
be considered admitted. Although the Respondent filed
an answer to the complaint, it subsequently withdrew its
answer. The withdrawal of an answer has the same ef-
1 According to the uncontroverted allegations in the motion for de-
fault judgment, during a pretrial conference call between the parties and
the administrative law judge on September 11, 2002, the Respondent’s
counsel indicated that Respondent intended to withdraw its answer and
also waived its right to answer an amended complaint that was to issue.
fect as a failure to file an answer, i.e., the allegations in
the amended consolidated complaint must be considered
to be true.2 Further, the Respondent has not filed an an­
swer to the amended complaint.
Accordingly, we grant the General Counsel’s Motion
for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business located at 2525
Beech Daly Road, Dearborn Heights, Michigan, has been
engaged in manufacturing automotive related metal prod­
ucts.
During the 12-month period ending December 31,
2001, the Respondent, in conducting its business opera­
tions, purchased goods and materials valued in excess of
$50,000 from points located outside the State of Michi­
gan and caused these goods and materials to be shipped
directly to its Dearborn Heights, Michigan facility. We
find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their names and have
been supervisors of Respondent within the meaning of
Section 2(11) of the Act and/or agents of Respondent
within the meaning of Section 2(13) of the Act:
Kazuo Saito President

Francis K. Kotcher Jr., CPA Trustee

George Kasami Plant Manager

James Bevins R&D Engineering Manager

Alan Maliszewski General Manager

Barb Gibson Inspection Supervisor

James Darling Controller

Clint Straub Production Manager

Roscoe Johnson Production Supervisor

Darla Dennell Accountant

The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain­
ing within the meaning of Section 9(b) of the Act:
All production and maintenance employees, including
shipping and receiving employees and inspectors at the
Respondent’s facility located at Dearborn Heights,
Michigan; but excluding all guards and supervisors as
defined in the Act.
2 See Maislin Transport, 274 NLRB 529 (1985).
339 NLRB No. 49
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since in or about 1967 and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit and since then the
Union has been recognized as the representative by the
Respondent. This recognition has been embodied in a
series of collective-bargaining agreements, the most re-
cent of which is effective from April 23, 2001 until April
20, 2003. At all times since in or about 1967, based on
Section 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the unit.
About February 22, 2002, the Respondent laid off all
unit employees employed at its Dearborn Heights facility
and thereafter closed its facility.
Since about February 22, 2002, the Respondent, by its
agents Kazuo Saito and Francis K. Kotcher Jr., failed to
continue in effect all the terms and conditions of its col­
lective-bargaining agreement with the Union and has
repudiated the agreement by, inter alia, failing to pay
fringe benefits, including vacation pay, and failing to
comply with the seniority provisions.
The Respondent engaged in the conduct described
above without the Union’s consent and without provid­
ing the Union with adequate notice and an opportunity to
bargain regarding the effects of its actions on unit em­
ployees. The subjects set forth above relate to wages,
hours, and other terms and conditions of employment of
the unit and are mandatory subjects for the purposes of
collective bargaining.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon­
dent has failed and refused to bargain collectively and in
good faith with the exclusive collective-bargaining repre­
sentative of its employees within the meaning of Section
8(d) of the Act, and has thereby engaged in unfair labor
practices affecting commerce within the meaning of Sec­
tion 8(a)(5) and (1) and 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, to remedy
the Respondent’s unlawful failure and refusal to bargain
with the Union about the effects of the Respondent’s
decision to close its Dearborn Heights facility and lay off
all its unit employees, we shall order the Respondent to
bargain with the Union, on request, about the effects of
that decision. Because of the Respondent’s unlawful
conduct, however, the laid-off unit employees have been
denied an opportunity to bargain through their collective-
bargaining representative. Meaningful bargaining cannot
be assured until some measure of economic strength is
restored to the Union. A bargaining order alone, there-
fore, cannot serve as an adequate remedy for the unfair
labor practices committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our Order with a limited
backpay requirement designed to make whole the employ­
ees for losses suffered as a result of the violations and to
recreate in some practicable manner a situation in which
the parties’ bargaining position is not entirely devoid of
economic consequences for the Respondent. We shall do
so by ordering the Respondent to pay backpay to the laid
off employees in a manner similar to that required in
Transmarine Navigation Corp ., 170 NLRB 389 (1968),3
as clarified by Melody Toyota, 325 NLRB 846 (1998).
Thus, the Respondent shall pay its laid off employees
backpay at the rate of their normal wages when last in the
Respondent’s employ from 5 days after the date of this
Decision and Order until occurrence of the earliest of the
following conditions: (1) the date the Respondent bargains
to agreement with the Union on those subjects pertaining
to the effects of the closing of its facility on its employees;
(2) a bona fide impasse in bargaining; (3) the Union’s fail­
ure to request bargaining within 5 business days after re­
ceipt of this Decision and Order, or to commence negotia­
tions within 5 days after receipt of the Respondent’s notice
of its desire to bargain with the Union; or (4) the Union’s
subsequent failure to bargain in good faith.
In no event shall the sum paid to these employees ex­
ceed the amount they would have earned as wages from
the date on which they were laid off to the time they se­
cured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner. However, in no
event shall this sum be less than the employees would
have earned for a 2-week period at the rate of their nor­
mal wages when last in the Respondent’s employ. Back-
pay shall be based on earnings which the laid off em­
ployees would normally have received during the appli­
cable period, less any net interim earnings, and shall be
computed in accordance with F .W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition, having found that the Respondent violated
Section 8(a)(5) and (1) since February 22, 2002, by fail­
ing and refusing to continue in effect all the terms and
conditions of, and repudiating, the collective-bargaining
agreement, by, inter alia, failing to pay fringe benefits,
including vacation pay, and by failing to comply with the
seniority provisions, we shall order the Respondent to
3 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
ANCOTECH, INC. 3
make whole its unit employees for any loss of earnings
and other benefits they have suffered as a result. In addi­
tion, we shall order the Respondent to make all contrac­
tually-required benefit fund contributions, if any, that
have not been made since the same date, including any
additional amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 6
(1979). The Respondent shall also reimburse unit em­
ployees for any expenses ensuing from its failure to
make the required contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
661 F.2d 940 (9th Cir. 1981).4 All payments to the unit
employees shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, supra.5
Finally, in view of the fact that the Respondent’s
Dearborn Heights’ facility is closed, we shall order the
Respondent to mail a copy of the attached notice to the
Union and to the last known addresses of its former em­
ployees in order to inform them of the outcome of this
proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Ancotech, Inc., Dearborn Heights, Michi­
gan, its officers, agents, successors, and assigns, shall
Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), AFL–CIO, as the exclusive collective-
bargaining representative for the unit described below,
concerning the effects on the unit employees of its deci­
sion to close its Dearborn Heights, Michigan facility and
lay off all its unit employees.
The unit is:
All production and maintenance employees, including
shipping and receiving employees and inspectors at the
Respondent’s facility located at Dearborn Heights,
Michigan; but excluding all guards and supervisors as
defined in the Act.
4 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin­
quent contributions during the period of the delinquency, the Respon­
dent will reimburse the employee, but the amount of such delinquency
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
5 Inasmuch as the Dearborn Heights facility was closed on the same
date as the Respondent ceased paying contractually required benefits
(February 22, 2002), the Respondent shall only be required to make
whole the unit employees and the funds for benefits that had accrued
prior to the date of closure. See Laimbeer Packaging Co ., 339 NLRB
No. 28 (2003).
(b) Failing to continue in effect all the terms and con­
ditions of, and repudiating, the collective-bargaining
agreement by, inter alia, failing to pay fringe benefits,
including vacation pay, and by failing to comply with the
seniority provisions.
(c) 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 over the effects
on unit employees of its decision to close its Dearborn
Heights, Michigan facility and lay off the unit employ­
ees, and reduce to writing and sign any agreement
reached as a result of such bargaining.
(b) Pay the laid-off unit employees their normal wages
when last in Respondent’s employ from 5 days after the
date of this Decision and Order until the occurrence of
the earliest of the following conditions: (1) the date the
Respondent bargains to agreement with the Union on
those subjects pertaining to the effects of the closing of
its facility on its employees; (2) a bona fide impasse in
bargaining; (3) the Union’s failure to request bargaining
within 5 business days after receipt of this Decision and
Order, or to commence negotiations within 5 days after
receipt of the Respondent’s notice of its desire to bargain
with the Union; or (4) the Union’s subsequent failure to
bargain in good faith; but in no event shall the sum paid
to any of the employees exceed the amount they would
have earned as wages from the date on which they were
laid off to the time they secured equivalent employment
elsewhere, or the date on which the Respondent shall
have offered to bargain in good faith, whichever occurs
sooner; provided, however, that in no event shall this
sum be less than the employees would have earned for a
2-week period at the rate of their normal wages when last
in the Respondent’s employ, with interest, as set forth in
the remedy section of this decision.
(c) Make the unit employees whole for any loss of
earnings and other benefits they may have suffered as a
result of the failure to pay, inter alia, fringe benefits, in­
cluding vacation pay, and to comply with the seniority
provisions of the collective-bargaining agreement since
February 22, 2002, with interest, as described in the rem­
edy section of this decision.
(d) Make all the contractually required benefit fund
contributions, if any, that have not been made on behalf
of the unit employees since February 22, 2002, and re­
imburse unit employees for any expenses ensuing from
its failure to make the required contributions, with inter­
est, in the manner set forth in the remedy section of this
decision.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) 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, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, dupli­
cate and mail at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix” 6 to all former
employees who were employed by the Respondent when
it ceased operations at the Dearborn Heights facility on
about February 22, 2002.
(g) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi­
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C. June 27, 2003
Robert J. Battista, Chairman
Wilma B. Liebman, Member
Dennis P. Walsh, Member
(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
violated 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 benefit
and protection
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected ac­
tivities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO, as the exclusive
collective bargaining representative for the unit described
below, concerning the effects on the unit employees of
our decision to close our Dearborn Heights, Michigan
facility and layoff all our unit employees.
All production and maintenance employees, including
shipping and receiving employees and inspectors at our
facility located at Dearborn Heights, Michigan; but ex­
cluding all guards and supervisors as defined in the
Act.
WE WILL NOT fail to continue in effect all the terms
and conditions of, or repudiate, the collective-bargaining
agreement by, among other things, failing to pay fringe
benefits including vacation pay, and failing to comply
with the seniority provisions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain with the Union over the
effects on unit employees of our decision to close our
Dearborn Heights, Michigan facility and lay off all the
unit employees, and reduce to writing and sign any
agreement reached as a result of such bargaining.
WE WILL pay the unit employees limited backpay in
connection with our failure to bargain over the effects of
our decision to close our Dearborn Heights, Michigan
facility and to lay off employees as required by the Deci­
sion and Order of the National Labor Relations Board.
WE WILL make the unit employees whole for any loss of
earnings and other benefits they may have suffered as a
result of our failure to pay, among other things, fringe
benefits, including vacation pay, and our failure to comply
with the seniority provisions of the collective-bargaining
agreement since February 22, 2002, with interest.
WE WILL make all contractually-required benefit fund
contributions, if any, that have not been made on behalf of
the unit employees since February 22, 2002, and reim­
burse unit employees for any expenses ensuing from our
failure to make the required contributions, with interest.
ANCOTECH, INC.