Arrow Die Cutting, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 2004

342 N.L.R.B. 14 (N.L.R.B. 2004)

342 NLRB No. 14
Arrow Die Cutting, Inc. and Manufacturing Produc-
tion & Service Workers Union, Local 24. Cases
13–CA–41379–1 and 13–CA–41415–1
June 24, 2004
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 failed to file
an answer to the consolidated complaint. Upon a charge
and a first amended charge filed by the Union in Case
13–CA–41379–1 on October 6, 2003 and December 8,
2003, respectively, and a charge and a first amended
charge filed in Case 13–CA–41415–1 on October 16,
2003 and December 8, 2003, respectively, the General
Counsel issued the consolidated complaint on December
19, 2003, against Arrow Die Cutting, Inc., the Respon-
dent, alleging that it has violated Section 8(a)(1) and (5)
of the Act. The Respondent failed to file an answer.
On April 12, 2004, the General Counsel filed a Motion
for Default Judgment with the Board. On April 15,
2004, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed no
response. The allegations in the motion 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 consolidated complaint affirma-
tively stated that unless an answer was filed, all the alle-
gations in the complaint would be considered admitted.
Further, the undisputed allegations in the General Coun-
sel’s motion disclose that the Region, by letter dated
March 23, 2004, notified the Respondent that unless an
answer was filed within 10 days of the date of the letter,
a motion for default judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’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 in Broadview, Illi-
nois, has been engaged in the business of manufacturing
corrugated cardboard displays.
During the past fiscal year, a representative period, the
Respondent sold and shipped from its Broadview, Illinois
facility products, goods and materials valued in excess of
$50,000 to an enterprise located within the State of Illi-
nois and that enterprise sold and shipped these goods
directly to points outside the State of Illinois.
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 Manufacturing Production & Ser-
vice Workers Union, Local 24, is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times Raymond J. Fisher III held the
position of vice president and has been an agent of the
Respondent within the meaning of Section 2(13) of the
Act.
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 of this
company, excluding office and plant clerical employ-
ees, professional, technical, supervisors and guards, as
defined in the Act, and employees belonging to other
Unions that have collective-bargaining contracts with
this company.

Since on or before October 1993, and at all material
times, the Union has been the designated exclusive col-
lective-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 successive collective-bargaining agreements, the most
recent of which is effective from December 1, 2000 to
November 30, 2003 (the Agreement).
At all times since at least October 1993, based on Sec-
tion 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the unit.
About September 1, 2003, the Union, by letter, re-
quested that the Respondent bargain collectively with the
Union as the exclusive collective-bargaining representa-
tive of the unit.
Since about October 2, 2003, the Respondent, by Ray
Fisher, has failed and refused to bargain with the Union
as the exclusive collective-bargaining representative of
the unit.
The Agreement covers terms and conditions of em-
ployment of the unit, and was to remain in effect until
November 30, 2003, or for consecutive 1-year periods
thereafter unless either party gave written notice of its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
desire to terminate or modify the agreement 60 days
prior to the expiration of the Agreement.
Since on or about April 20, 2003, the Respondent, by
Ray Fisher, has failed to continue in effect all the terms
and conditions of the Agreement described above by,
inter alia, failing to pay employees wages as required,
failing to provide paid vacation benefits, failing to make
required contributions to the health and welfare fund,
failing to make required contributions to the pension
fund, and failing to remit union dues payments to the
Union.
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.
The Respondent engaged in the conduct described
above without the Union’s consent.
By this conduct, the Respondent has failed and refused
to bargain collectively and in good faith with the Union
as the exclusive collective-bargaining representative of
the unit employees, and has thereby engaged 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.1

1 The complaint, which issued on December 19, 2003, alleges that
the parties’ Agreement “was to remain in effect until November 30,
2003, or for consecutive one-year periods thereafter unless either party
gave written notice of its desire to terminate or modify the agreement.”
This language suggests, but does not specifically allege, that the con-
tract is still in effect. We note that, under existing Board law, postcon-
tract expiration, there is no obligation to abide by the terms of a con-
tractual dues-checkoff provision and failure to do so does not violate
Sec. 8(a)(5). Hacienda Resort Hotel & Casino, 331 NLRB 665, 666–
667 (2000), vacated and remanded sub nom. Local Joint Executive
Board of Las Vegas, Culinary Workers Local 226 v. NLRB, 309 F.3d
578 (9th Cir. 2002). However, if an employer continues to deduct dues
after the expiration of a contract and keeps those sums for itself, it may
independently violate Sec. 8(a)(1). See Talaco Communications, Inc.,
321 NLRB 762, 763 (1996). Here, the complaint alleges that the Re-
spondent has failed to remit union dues payments to the Union, which
suggests that the Respondent actually made the dues deductions. See
Kane Systems Corp., 315 NLRB 355, 356–357 (1994) (Board read
complaint allegation of failure to remit dues to the union as meaning
that the respondent failed “to remit to the Union dues that were de-
ducted from the pay of unit employees pursuant to valid dues-checkoff
authorizations”). There is no allegation that the Agreement has ex-
pired, or that the Respondent’s conduct constituted an independent
violation of Sec. 8(a)(1). We therefore find that the complaint is alleg-
ing that the contract is still in effect and that the Respondent violated
the Act by failing to remit to the Union, in accordance with the dues-
checkoff provision, dues payments deducted pursuant to valid dues-
checkoff authorizations. Contrast Advanced Telephonics, 341 NLRB
No. 40 (2004) (on its face complaint alleged that contract had expired
and that respondent ceased remitting to the union dues payments de-
ducted from employee paychecks).
CONCLUSION OF LAW
By failing, since about October 2, 2003, to bargain
with the Union as the exclusive collective-bargaining
representative of the unit, and by failing, since about
April 20, 2003, to continue in effect all the terms and
conditions of the Agreement by, inter alia, failing to pay
employees wages as required, provide paid vacation
benefits, make required contributions to the health and
welfare fund and pension fund, and remit to the Union
dues payments deducted pursuant to valid checkoff au-
thorizations prior to the expiration of the Agreement, the
Respondent has failed and refused to bargain collectively
and in good faith with the Union as the exclusive collec-
tive-bargaining representative of the unit employees, and
has thereby engaged 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.
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 has violated Section 8(a)(5)
and (1) by, since about October 2, 2003, failing and re-
fusing to bargain with the Union as the exclusive collec-
tive-bargaining representative of the unit, and since about
April 20, 2003, failing to continue in effect all of the
terms and conditions of the December 1, 2000 to No-
vember 30, 2003 collective-bargaining agreement by
failing to pay employees wages, provide paid vacation
benefits, and make required contributions to the health
and welfare and pension funds, we shall order the Re-
spondent to bargain with the Union as the exclusive col-
lective-bargaining representative of the unit employees,
and to make whole its unit employees for any loss of
earnings and other benefits they have suffered as a result
of the Respondent’s unlawful conduct, in the manner set
forth in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
In addition, we shall order the Respondent to make all
contractually-required benefit fund contributions that
have not been made since April 20, 2003, 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
ARROW DIE CUTTING INC. 3
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
661 F.2d 940 (9th Cir. 1981).2
Finally, having found that the Respondent violated
Section 8(a)(5) and (1) by failing to remit union dues
payments to the Union as required by the collective-
bargaining agreement, we shall order the Respondent to
remit to the Union dues payments deducted pursuant to
valid checkoff authorizations prior to the expiration of
the Agreement, with interest as prescribed in New Hori-
zons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Arrow Die Cutting, Inc., Broadview, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Manufacturing Production & Service
Workers Union, Local 24, as the exclusive collective-
bargaining representative of the employees in the follow-
ing unit:

All production and maintenance employees of this
company, excluding office and plant clerical employ-
ees, professional, technical, supervisors and guards, as
defined in the Act, and employees belonging to other
Unions that have collective-bargaining contracts with
this company.

(b) Failing and refusing to continue in effect all of the
terms and conditions of the December 1, 2000 to No-
vember 30, 2003 collective-bargaining agreement by
failing to pay employees wages, provide paid vacation
benefits, make required contributions to the health and
welfare fund and pension fund, and remit to the Union
dues payments that were deducted pursuant to valid
checkoff authorizations prior to the expiration of the
Agreement.
(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 as the exclusive
collective-bargaining representative of the unit employ-
ees on terms and conditions of employment and, if an

2 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Respondent’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such reimburse-
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
understanding is reached, embody the understanding in a
signed agreement.
(b) Make whole the unit employees for any loss of
earnings and other benefits they may have suffered as a
result of its refusal since April 20, 2003, to continue in
effect all of the terms and conditions of the collective-
bargaining agreement, with interest, as set forth in the
remedy section of this decision.
(c) Make all contractually-required health and welfare
and pension fund contributions that have not been made
since April 20, 2003, including any additional amounts
due the funds, and reimburse unit employees for any ex-
penses ensuing from its failure to make the required
payments, with interest, as set forth in the remedy section
of this decision.
(d) Remit to the Union dues payments deducted pursu-
ant to valid checkoff authorizations prior to the expira-
tion of the collective-bargaining agreement that have not
been remitted since April 20, 2003, with interest, as set
forth in the remedy section of this decision.
(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 elec-
tronic 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, post at
its facility in Broadview, Illinois, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 20, 2003.

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.

CHAIRMAN BATTISTA, dissenting in part.
I would not grant summary judgment with respect to
the alleged failure to remit union dues.
The complaint alleges the existence of a contract until
November 30, 2003. Further, although the complaint is
unclear in this respect, my colleagues construe the com-
plaint to allege that the contract continued after that date.
The complaint also alleges that the Respondent failed to
adhere to the contract. I assume arguendo that my col-
leagues are correct in these respects. Thus, the com-
plaint, coupled with admission through nonanswer,
yields the fact that the Respondent failed to adhere to the
contract at all relevant times. Of course, this would
mean that the Respondent did not deduct the Union dues.
And yet, my colleagues’ finding of a violation is based
on the asserted fact that the Respondent did deduct the
dues.
Concededly, the complaint could be read to allege that
the Respondent adhered to some of the terms of the con-
tract, but did not adhere to others. Under this view, the
Respondent deducted the union dues and failed to remit
them to the Union. However, the complaint allegation is
far from clear, and there is no express allegation that the
Respondent adhered to the checkoff clause of the con-
tract.
My colleagues rely on Kane Systems Corp., 315
NLRB 355 (1994). The case is clearly distinguishable.
In that case, the complaint clearly alleged that the con-
tract was in effect and that the employer failed to adhere
to it. The employer filed an answer which expressly ad-
mitted retention of the moneys, and explained that the
nonpayments were caused by cash flow shortages. In
sum, there was no question but that the employer de-
ducted the money and kept the money for itself. As dis-
cussed above, that is not the situation here.
In sum, because of the several ambiguities in the rele-
vant allegations of the complaint, I would not grant
summary judgment as to these allegations. However, my
denial of summary judgment is without prejudice to a
General Counsel effort to amend the complaint. The
amendment would clarify the dates when the contract
was in effect, the specific contract clauses to which the
Respondent adhered and those to which it did not adhere,
and whether the Respondent deducted dues and failed to
remit same.
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 vio-
lated 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
activities.

WE WILL NOT fail and refuse to bargain with Manufac-
turing Production & Service Workers Union, Local 24,
as the exclusive collective-bargaining representative of
the employees in the following unit:

All production and maintenance employees of our
company, excluding office and plant clerical employ-
ees, professional, technical, supervisors and guards, as
defined in the Act, and employees belonging to other
Unions that have collective-bargaining contracts with
us.

WE WILL NOT fail and refuse to continue in effect all of
the terms and conditions of the December 1, 2000 to No-
vember 30, 2003 collective-bargaining agreement by
failing to pay employees wages, provide paid vacation
benefits, make required contributions to the health and
welfare fund and pension fund, and remit to the Union
dues payments deducted pursuant to valid checkoff au-
thorizations prior to the expiration of the collective-
bargaining agreement.
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 as the
exclusive collective-bargaining representative of the unit
employees on terms and conditions of employment, and
reduce to writing any understanding reached, and sign
the agreement.
WE WILL make whole the unit employees for any loss
of earnings and other benefits they may have suffered as
a result of our refusal since April 20, 2003, to continue in
effect all of the terms and conditions of the collective-
bargaining agreement, with interest.
ARROW DIE CUTTING INC. 5
WE WILL make all contractually-required health and
welfare and pension fund contributions that have not
been made since April 20, 2003, including any additional
amounts due the funds, and WE WILL reimburse unit em-
ployees for any expenses ensuing from our failure to
make the required payments, with interest.
WE WILL remit to the Union dues payments deducted
pursuant to valid checkoff authorizations prior to the
expiration of the collective-bargaining agreement that
have not been remitted since April 20, 2003, with inter-
est.
ARROW DIE CUTTING, INC.