Atf-Davidson Co.

National Labor Relations Board - Board Decisions

May 31, 1990

298 N.L.R.B. 699 (N.L.R.B. 1990)

ATF-DAVIDSON CO. 699
ATF-Davidson Company and United Steelworkers of
America, AFL-CIO. Case 1-CA-26547
May 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
Upon a charge filed by the United Steelworkers
of America, AFL-CIO (the Union), July 26, 1989,1
the General Counsel of the National Labor Rela-
tions Board issued a complaint against ATF-David-
son Company, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act. Although properly 'served
copies of the charge and complaint, the Respond-
ent has failed to file an answer.
On February 12, 1990, the General Counsel filed
a Motion for Summary Judgment. On February 13,
1990, the Board 'issued an order transferring the
proceeding to the Board and a Notice' to Show
Cause why the motion should not be granted. On
February 27, 1990, the Respondent filed a memo-
randum opposing the General Counsel's motion
and a motion to file answer late.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to 'a three-
member panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions 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. The complaint, Which
issued September 7, states that unless an answer is
filed within 14 days of service, "all of the allega-
tions in' the complaint shall be deemed to 'be admit-
ted to be true and shall be' so found by the Board."
Further, the undisputed allegations in the Motion
for Summary Judgment disclose that the counsel
for the; General Counsel, by letter dated November
27, notified the Respondent that unless an answer
was received by December 4, a Motion for Sum-
mary Judgment would be filed.
In support of its motion, the Respondent con-
tends that its failure to file a timely answer was due
to "excusable neglect and/or inadvertent mistake
based on miscommunication with counsel for the
[Board]." The 'Respondent asserts that, on Novem-
ber 27, 1989, its bankruptcy counsel, Robert Adler,
informed the Board agent by telephone that the
Respondent was involved in a liquidating bankrupt-
cy proceeding, did not have all the information re-'
I All subsequent dates refer to 1989 unless specified otherwise
298 NLRB No. 92
quested by the Union, and was willing to provide
the information in its possession; and that, follow-
ing this conversation, Adler believed that filing a
response to the Board's complaint was not neces-
sary. As noted above, however, counsel for the
General Counsel mailed the Respondent a letter
dated November 27, 1989, specifically notifying the
Respondent of its obligation to file an answer by
December 4. We find that the Respondent has not
provided a sufficient explanation for its failure to
act before the extended deadline. Under these cir-
cumstances, we find that the Respondent has not
shown good cause for its failure to file a timely
answer,2 and we deny its motion to file an untime-
ly answer.
In the absence of good cause being shown for
the failure to file a timely answer, we grant the
General Counsel's Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondents a corporation, has been en-
gaged in the manufacture and sale of printing
presses and duplicators at its facility in Whitins-
ville, Massachusetts, where it, annually purchases
and receives at its Whitinsville facility products,
goods, and materials valued in excess of $50,000 di-
rectly from points outside the Commonwealth of
Massachusetts. We find that the Respondent is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that
Local 3654 and Local 7147 are labor organizations
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times Local 3654 and Local 7147
have been the designated collective-bargaining rep-
resentatives in appropriate units3 and have been
recognized as such by the Respondent. The Re-
spondent is a party to contracts with both Locals,
which are effective from May '19, 1989, through
May 31, 1992. By virtue of Section 9(a) of the Act,
the Locals are the exclusive representatives of the
employees in the respective bargaining units for the
purposes of collective bargaining concerning rates
of pay, wages, hours of employment, and other
terms and conditions of employment.
About July 20 a union staff representative re-
quested the Respondent to meet and bargain with
2 See Lee & Sons Tree Service, 282 NLRB 905 (1987).
3 The units consist of all employees of the Respondent as described in
Local 3654 s and Local 7147's collective-bargaining agreements with the
Respondent
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local 3654 and Local 7147 regarding, the effects of
the closing of the Respondent's Whitinsville facili-
ty. About July 20 the Union's staff representative
requested, on behalf of Local 3654 and Local 7147,
"[t]he following information pertaining to pension:
copy of form 5500; actuary data; latest actuary
evaluation; plan document." The requested infor-
mation is necessary for, and relevant to, the Locals'
performance of their function as exclusive collec-
tive-bargaining representatives. - Since about July
20, .the Respondent has refused to meet and bargain
with the Locals concerning -the effects of the clos-
ing and has., refused to provide the Locals the re-
quested pension information. By these acts, the Re-
spondent has engaged in, and is 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.
CONCLUSIONS OF LAW
1. By refusing to meet and bargain with Local
3654 and Local 7147 regarding the effects of the
closing of its Whitinsville facility, the Respondent
has engaged in unfair labor practices affecting com-
merce- within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
2. By, refusing and failing to provide Local 3654
and, Local 7147 with the requested 'pension infor-
mation, the' Respondent has 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 certain 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.4
Having found that ' the Respondent has unlawful-
ly refused to provide Local 3654 and Local 7147
with certain requested information , we shall order
it to provide the requested pension information, to
the extent it has not already done so.
Concerning the Respondent 's unlawful failure to
bargain with the Union over the effects of the Re-
spondent's termination of operations , the bargaining
unit employees have been denied an opportunity to
bargain through their collective -bargaining repre-
sentatives at a time ' when the Respondent might
still have been in need of their ' services, and at a
time when ' a measure of balanced bargaining power
existed. A bargaining order alone , therefore, cannot
4 Because of the Respondent's cessation of operations, we, shall provide
for mailing the notice
serve as an adequate remedy for the unfair labor
practice committed. -
Accordingly, we deem it necessary, in order to
effectuate the purpose of the Act, to require the
Respondent to bargain with the Locals represent-
ing its employees, on request, about the effects of
the closure on unit employees, and shall accompa-
ny the Order with a limited backpay requirement
designed both to make the employees, whole for
losses, suffered as a result of the Respondent's fail-
ure to bargain, and to re-create in some practicable
manner a situation in which the parties'- bargaining
position is not entirely devoid,-of economic conse-
quences for the Respondent. We shall do-so in this
case by requiring the Respondent to pay backpay
to its employees in a manner similar to that re-
quired in Transmarine Navigation Corp„ 170 NLRB
389 (1968). We shall order the Respondent to pay
employees in the units 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 the occurrence of the earliest of
the following -events: (1) the date-the -Respondent
bargains to agreement with the Locals on those
subjects pertaining to the effects of the closing on
the units; (2) a bona fide impasse in bargaining; (3)
the failure of the Locals to request bargaining
within 5 days of the date of this 'decision, or to
commence negotiations within 5 days of the Re-
spondent's- notice of its desire to bargain with the
Locals; or (4) the subsequent failure of, the Locals
to bargain in good faith., In no event shall the sum
paid to any of the employees in the units exceed
the amount the employees would have earned as
wages from the date on which the Respondent
closed its operations to the time they secured
equivalent employment„ elsewhere, or the date on
which the Respondent, shall have made a bona fide
offer to bargain, whichever occurs sooner; provid-
ed, however, that in no event shall the sum be less
than these employees would have earned for a 2-
week period at the rate of their normal wages
when last in the Respondent's employ. Interest on
all sums -shallbe, paid in the manner prescribed in
New Horizons for the Retarded.s
ORDER
The- National Labor Relations Board orders that
the Respondent, ATF-Davidson Company, Whi-
tinsville, Massachusetts, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from -
(a)- Refusing to meet and bargain with United
Steelworkers of America, AFL-CIO, Local 3654
5 283 NLRB 1173 (1987)
ATF-DAVIDSON CO. ,
and United Steelworkers of America, AFL-CIO,
Local 7147 regarding the effects of the closing of
its Whitinsville facility.
(b) Refusing to provide Local 3654 and Local
7147 with requested pension information.
(c) ,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 neces-
sary to effectuate the policies of the Act.
(a)- On request, meet and bargain with Local
3654 and Local 7147 as the exclusive representa-
tives of employees in the following appropriate
units regarding the -effects of the closing of its Whi-
tinsville facility:
All employees as, described in the collective-
bargaining agreement between Local 3654 and
ATF-Davidson Company, which is effective
by its terms for the time period May 19, 1989,
through May 31, 1992.
All employees as described in the collective-
bargaiiiing, agreement between Local 7147 and
ATF-Davidson Company, which is effective
by its terms for the time, period May 19, 1989,
through May 31, 1992.
(b) Pay the unit employees, laid off or terminated
on the date the Respondent terminated its oper-
ations their normal wages, plus interest, for the
period set forth in the remedy section of this deci-
sion.
(c) Provide Local 3654 ' and Local 7147 the re-
quested pension information, to the extent it has
not already done so.
(d) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other, records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Mail a copy of the attached notice marked
"Appendix" to all employees who were employed'
by the Respondent immediately prior to the Re-
spondent's cessation of operations. Copies of the
notice, on forms provided by the Regional Direc-
e If this Order is enforced by a judgrrient of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
701
tor for Region 1, after being signed by the Re-
spondent's authorized representative, shall be
mailed immediately upon receipt.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 refuse -to meet and bargain with
United Steelworkers of America, AFL-CIO, Local
3654 and United Steelworkers of America, AFL-
CIO, Local 7147 regarding the effects of 'closing
our Whitinsville facility.
WE WILL NOT refuse to provide Local 3654 and
Local 7147 with requested pension information.
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.
WE WILL, on request, meet and bargain with
Local 3654 and Local 7147 as the exclusive repre-
sentatives of employees in the following appropri-
ate units regarding .the effects of closing our Whi-
tinsville facility:
All employees as described in the c'ollective-
bargaining agreement between Local 3654 and
ATF-Davidson Company, which is effective
by its terms for the time period May 19, 1989,
through May 31, 1992.
All employees as described in the collective-
bargaining agreement between Local 7147 and
ATF-Davidson Company, which is effective
by its terms for the time period May 19, 1989,
through May 31, 1992.
WE WILL pay unit employees laid off' or dis-
charged on the date we terminated our operations
their normal wages, plus interest, for a period re-
quired by the Decision and Order.
WE WILL provide Local 3654 and 'Local 7147
with requested pension 'information, to the extent
we have not already done so.
ATF-DAVIDSON COMPANY