Auburn Die Co., Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1987

282 N.L.R.B. 1044 (N.L.R.B. 1987)

1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Auburn Die Co., Inc . and United Paperworkers
International Union, AFL-CIO and its Local
No. 1312. Case 1-CA-23208
5 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
Upon a charge filed by the Union 23 September
1985, the General Counsel of the National Labor
Relations Board issued a complaint 25 November
1985 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act. On 8 January
1986 the Company filed an answer to the com-
plaint, and on 15 January 1986 the parties executed
a stipulation. Thereafter, on 24 January 1986 the
General Counsel issued an amended complaint. Al-
though properly served with copies of the amend-
ed complaint, the Company has failed to file an
answer to that complaint.
On 3 July 1986 the General Counsel filed a
Motion for Summary Judgment. On 11 July 1986
the Board issued an Order transferring the pro-
ceeding to the Board and a Notice to Show cause
why the motion should not be granted. The Com-
pany filed no response. The allegations in the
motion are therefore undisputed.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its Motion for Summary Judgment the Gener-
al Counsel contends that the Company has failed to
file an answer to the amended complaint and that
under Section 102.20 of the Board's Rules and
Regulations the Board should find the allegations
of the amended complaint to be true and issue an
order based on such findings. The Company, how-
ever, filed an answer to the original complaint and
notice of hearing issued 25 November 1985, the
substantive allegations of which are, in relevant
part, the same as those contained in the amended
complaint.' Accordingly, we find, contrary to the
General Counsel, that the Company's answer to
the original complaint satisfies its obligation under
Section 102.20 to file a timely answer, and we de-
cline to grant the motion for summary judgment on
this basis. Marko Contractors, 269 NLRB 990
1 The sole significant difference between the original and amended
complaints is that the allegation of an unlawful refusal to provide infor-
mation contained in the original complaint was deleted in -the amended
complaint
(1984). See also Oldwick Materials , 264 NLRB 1152
(1982).
Nevertheless , under the circumstances of this
case, we find that summary judgment is appropri -
ate. In its answer and in the subsequent stipulation,
the Company admits the factual allegations of the
complaint , i.e., that it ' failed and refused to negoti-
ate on request with the Union concerning the ef-
fects of its decision to cease doing business, and
that it has failed and refused to make appropriate
payments to the Paper-Industry Union-Manage-
ment Pension Fund . Moreover, the Company does
not specifically deny the allegation in the com-
plaint that its actions constitute a failure to bargain
collectively and in good faith with the Union in
violation of the Act except insofar as it contends
that its actions were a result of its economic cir-
cumstances . It is well settled, however , that eco-
nomic necessity is not cognizable as a defense to an
allegation of an unlawful refusal to bargain. Oak
Cliff-Golman Baking Co., 207 NLRB 1063, 1064
(1973).
Section 102 .20 of the Board 's Rules and Regula-
tions provides that "any allegation in the complaint
not specifically denied or explained . . . shall be
deemed to be admitted to be true . . ." Thus, the
Company having admitted the factual allegations of
the complaint and having , in effect, failed to deny
that its actions, constitute unfair labor practices, we
shall grant the General Counsel 's Motion for Sum-
mary Judgment;
On the entire record , the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a corporation with an office and
place of business in Auburn, Maine, has been en-
gaged in the manufacture of cutting dies. During
the calendar year ending 31 December 1984, the
Company, in the course and conduct of its oper-
ations sold and shipped from its Auburn, Maine fa-
cility products valued in excess of $50,000 directly
to L. L. Bean, Inc., G. H. Bass, Inc., and Etonic,
Inc., enterprises located within the State of Maine
which are directly engaged in interstate commerce.
We find that the Company is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since 8 January 1973, the Union has been desig-
nated exclusive collective-bargaining representative
282 NLRB No. 147
AUBURN DIE CO. 1045
for the employees of the Company in the following
appropriate unit:
All production and maintenance employees
employed by the Employer at its 61 Washing-
ton Street, Auburn, Maine plant, but excluding
all office clerical employees, professional em-
ployees; guards, and supervisors as defined in
the Act.
Since about 26 April 1985, the Company has
failed and refused to make appropriate payments to
the Paper-Industry Union-Management Pension
Fund for the period 1 July 1984 through 30 Sep-
tember 1985. Demand for all arrearages to the.
Paper-Industry Union-Management Pension Fund
was made on the Company about 26 April 1985
both verbally and by written correspondence. The
Company engaged in such conduct without prior
notice to and without having afforded the Union
an opportunity to negotiate and bargain as the ex-
clusive representative of the Company's employees
with respect to such conduct.
Since about 18 September 1985, the Union has
requested the Company to negotiate concerning
the effects of the Company's decision to cease
doing business. Since about t8 September 1985, the
Company has failed and refused to negotiate with
the Union concerning its decision to cease doing
business.
CONCLUSIONS OF LAW
1. The Company, Auburn Die Co., Inc., is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. United Paperworkers International Union,
AFL-CIO and its Local No. 1312 is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. By unilaterally failing since about 26- April
1985 to make appropriate payments to the Paper-
Industry Union-Management Pension Fund for the
period 1 July 1984 through 30 September 1985, and
by failing and refusing to negotiate on request with
the Union concerning the effects of its decision to
cease doing business, the Company has refused to
bargain with the Union and thereby 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 the
Respondent to cease and desist and to take certain
affirmative action designed to effectuate the pur-
poses of the Act. -
We shall order that the Respondent make whole
the respective unit employees by transmitting the
appropriate pension fund contributions to the
Paper-Industry Union-Management Pension Fund.2
With respect to the - Respondent's unlawful fail-
ure to bargain with the Union representing the unit
employees about the effects of the Respondent's
decision to cease doing business , the bargaining
unit employees have been denied an opportunity to
bargain through their collective-bargaining repre-
sentative 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 ex-
isted. Meaningful bargaining cannot be assured
until some measure of economic strength is re-
stored- to the Union. A bargaining ordler 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 the
Respondent to bargain with the Union, on request,
about the effects of the decision to cease doing
business on unit employees, and shall accompany
an order with a limited backpay requirement de-
signed both to make the employees whole for the
losses suffered as result of the Respondent's failure
to bargain, and to- recreate 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 respective unit employees in a manner similar to
that required in Transmarine Navigation Corp.., 170
NLRB 389 (1968). The Respondent shall pay its
unit 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 the occurrence of the earliest of the following
conditions: (1) The date the Respondent bargains
to agreement with the Union on those subjects per-
taining to the effects of the decision to cease doing
business on unit employees; (2) a bona fide impasse
in bargaining; (3) the failure of the Union to re-
quest bargaining within 5 days of the date of this
decision, or to, commence negotiations, within 5
2 Because the provisions of employee benefit fund agreements are van-
able and complex, the Board does not prdvide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld payments We leave ' to the compliance stage the question of
whether the Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy. These additional
amounts may be determined , depending on the circumstances of each
case, by reference to provisions in the documents governing the funds at
issue and, where there are not governing provisions , to evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds withheld,
additional administrative costs, etc., but not collateral losses. Merry-
weather Optical Corp, 240 NLRB 1213 (1979)
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days of the Respondent's notice of its desire to bar-
gain with the Union; (4) the subsequent failure of
the Union to bargain in good faith. In no event
shall the sum paid to any -of these employees
exceed the amount they would have earned as
wages from the date on which the Respondent
ceased doing business to the time they secured
equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bar-
gain , whichever occurs sooner; provided, however,
that in no event shall this sum be less than the
amount these employees would have earned for a
2-week period at a rate of their normal wages
when last in the Respondent's employ. Interest on
all sums shall be paid in a manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977).3
ORDER
The National Labor Relations Board orders that
the Respondent, Auburn Die Co., Inc., Auburn,
Maine, its officers, agents , successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with the Union by unilat-
erally failing to make appropriate payments to the
Paper-Industry Union-Management Pension Fund'
without prior` notice to the Union or affording the
Union an opportunity to bargain about such con-
duct.
(b) Refusing to bargain with the Union about the
effects on unit employees of its decision to cease
doing business.
(c) In any like or related manner interfering
with, restraining or coercing employees in the exer-
cise 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) Make its employees whole, in the manner set
forth in the remedy section of this decision, for the
Respondent's unlawful failure to transmit appropri-
ate payments to the Paper-Industry Union-Manage-
ment Pension Fund.
(b) On request, bargain collectively with the
Union about the effects of its decision to cease
doing business and, if an agreement is reached,
embody such understanding in a signed agreement.
(c) Pay the unit employees laid off or discharged
on the date the Respondent ceased doing business
3 The General Counsel requests a visitatorial clause authorizing the
Board, for compliance purposes , to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure subject to the supervision
of the United States court of appeals enforcing this Order. Under the cir-
cumstances of this case , we find it unnecessary to include such a clause.
Accordingly, we deny the General Counsel's request See Nathan Furni-
ture Store, 278 NLRB 268 (1986).
their normal wages , plus interest, for the period set
forth in the remedy section of this decision.
(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 an exact copy of the attached notice
marked "Appendix"4 to the Union and to all unit
employees who were employed at its Auburn,
Maine facility. Copies of the notice, on forms pro-
vided by the Regional Director for Region 1, after
being signed by its authorized representative, shall
be mailed immediately upon receipt, as herein di-
rected.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, concurring and dissenting.
I agree with my colleagues that the Respondent
violated Section 8(a)(5) of the Act by refusing to
bargain with the Union about the effects on unit
employees of its decision to cease doing business.
I do not agree, however, with the finding that
the Respondent further violated Section 8(a)(5) of
the Act by failing to make payments to the Paper-
Industry Union-Management Pension Fund. As I
stated in my dissent in Rapid Fur Dressing, 278
NLRB 905 (1986), the Board should decline to
become involved in contract disputes. As the Re-
spondent's conduct constitutes nothing more than a
contract violation, I would dismiss this portion of
the complaint.
4 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 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."
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 bargain with the Union
by `unilaterally failing to make appropriate pay-
ments to the Paper-Industry Union-Management
Pension Fund without prior notice to the Union or'
AUBURN DIE CO. 1047
affording the Union an opportunity to bargain
about such conduct.
WE WILL NOT refuse to bargain with United Pa-
perworkers International Union , AFL-CIO and its
Local No,. 1312 about the effects on unit employees
of our decision to cease doing business.
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 make unit employees whole for our
unlawful failure to transmit appropriate payments
to € e Paper-Industry Union-Management Pension
Fund.
WE WILL, on request , bargain collectively with
the, Union about the effects of our decision to cease
doing business and, if an agreement is reached,
embody such understanding in a signed agreement.
WE WILL pay unit employees laid off or dis-
charged on the date we ceased doing business their
normal wages, plus interest for the period required
by the Decision and Order of the National Labor
Relations Board.
AUBURN DIE Co., INC.