Capital Film Laboratories, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1982

260 N.L.R.B. 1161 (N.L.R.B. 1982)

CAPITAL FILM LABORATORIES, INC.
Capital Film Laboratories, Inc. and International
Alliance of Theatrical Stage Employees, AFL-
CIO. Case 5-CA-13601
March 24, 1982
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on August 11, 1981, by In-
ternational Alliance of Theatrical Stage Employ-
ees, AFL-CIO, herein called the Union, and duly
served on Capital Film Laboratories, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Acting Re-
gional Director for Region 5, issued a complaint
and notice of hearing on September 24, 1981,
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)(5) and (1) 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. On
November 9, 1981, the Acting Regional Director
issued an Order extending to November 23, 1981,
the time for filing an answer to the complaint. Re-
spondent failed to file an answer to the complaint.
On November 24, 1981, counsel for the General
Counsel advised Respondent that, absent the filing
of an answer by December 4, 1981, a Motion for
Summary Judgment would be filed.
On December 10, 1981, no answer to the com-
plaint having been filed, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December
15, 1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
failed to file a response to the Notice To Show
Cause and therefore the allegations of the Motion
for Summary Judgment stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
260 NLRB No. 136
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 specifically
state that, unless an answer to the complaint is filed
within 10 days from the service thereof, "all of the
allegations contained in the complaint shall be
deemed to be admitted to be true and may be so
found by the Board." As of the date of filing of the
Motion for Summary Judgment, no answer had
been filed by Respondent. Furthermore, Respond-
ent has failed to file a response to the Notice To
Show Cause in which it could have attempted to
explain its failure to answer.
In view of Respondent's failure to answer, and
no good cause having been shown therefor, the un-
controverted allegations of the complaint are
deemed admitted and found to be true in accord-
ance with the rule set forth above. Accordingly,
we grant the General Counsel's Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is engaged
in the processing of motion picture film at its
Washington, D.C., facility. In the 12 months pre-
ceding issuance of the complaint, a representative
period, Respondent caused to be purchased and re-
ceived in interstate commerce materials and sup-
plies valued in excess of $50,000 from points locat-
ed outside the District of Columbia.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
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 I.ABOR ORGANIZATION INVOI.VED
International Alliance of Theatrical Stage Em-
ployees, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The Union represented all of Respondent's em-
ployees at its Washington, D.C., location in a unit
appropriate for collective bargaining.' Respondent
has been a party to successive collective-bargaining
agreements with the Union, the most recent of
which expires by its terms on May 31, 1983.
On July 10, 1981, Respondent closed its Wash-
ington, D.C., facility and laid off all of the techni-
cal employees at that location. By letter dated July
13, 1981, the Union requested Respondent to bar-
gain, inter alia, concerning the effects of the clos-
ing and layoffs. Since on or about July 13, 1981,
and at all times thereafter, Respondent has refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit with respect to the effects of the closing
of Respondent's Washington, D.C., facility and
with respect to the resulting layoffs.
Accordingly, we find that, by the aforesaid con-
duct, Respondent has engaged in, and is engaging
in, unfair labor practices, within the meaning of
Section 8(a)(1) and (5) of the Act.2
IV. THE EFFECT OF THE UNFAIR I.ABOR
PRACTICES UPON COMMERCE
The activities of Capital Film Laboratories, Inc.,
set forth in section III, above, occurring in connec-
tion with its operations described in section I,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement. Further, in order to recreate in some
practicable manner a situation in which the parties'
bargaining is not entirely devoid of economic con-
' The complaint states that the appropriate unit consists of all technical
employees employed by Respondent at its Washington, D.C., location
No exclusions are set forth in the complaint.
I Burgmeyer Bro&, Inc., 254 NLRB 1027 (1981); IMerryweather Optical
Company, 240 NLRB 1213 (1979); Stagg Zipper Corp., as Successor to
Stagg Tool & Die Corp., 222 NLRB 1249 (1976); Automatrion Institute of
Los Angeles. Inc., d/b/a West Coast Schools, 208 NLRB 724 (1974); Trans-
marine Navigation Corporation and its Subsidiary, International Terminals,
Inc., 170 NLRB 389 (1968), remanded 380 F 2d 933 (9th Cir. 1967), re-
manding 152 NLRB 998 (1965).
sequences for Respondent, a limited additional
backpay requirement shall be included.3 Thus, Re-
spondent shall pay unit 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 operations on its employees;
(2) a bona fide impasse in bargaining; (3) the failure
of the Union to request bargaining within 5 days of
this Decision and Order, or to commence negotia-
tions within 5 days of Respondent's notice of its
desire to bargain with the Union; or (4) the subse-
quent failure of the Union to bargain in good faith;
but in no event shall the sum to any of these em-
ployees exceed the amount he or she would have
earned as wages from July 10, 1981, the date on
which Respondent terminated its operations, to the
time he or she secured equivalent employment else-
where, or the date on which Respondent shall have
offered to bargain, whichever occurs sooner; pro-
vided, 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. 4 Interest on all
backpay awarded herein shall be paid in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).5
To further effectuate the policies of the Act, Re-
spondent shall be required to establish a preferen-
tial hiring list of all terminated unit employees fol-
lowing the system of seniority, provided for in the
collective-bargaining agreement, or, if there is
none, that which is customarily applied to the con-
duct of Respondent's business and, if Respondent
ever resumes operations in the Washington, D.C.,
area, it shall be required to offer these employees
reinstatement. If, however, Respondent resumes
operations at its original Washington, D.C., facility,
Respondent shall be required to offer unit employ-
ees reinstatement to their former or substantially
equivalent positions.6
3 Backpay orders are appropriate means of remedying 8(a)(5) violations
of the type involved herein, even where such violations are unaccompan-
ied by a discriminatory shutdown of operations. Cf. Royal Plaling and Po-
li.shing Co.. Insc, 148 NLRH 545, 548 (1964). and cases cited therein
4 Iransmarine 'avigaiion Corporation and its subsidiary, International
Terminals, Inc. 170 NLRB 389 11968); Burgmever Bros.. Inc.. supra at
1029.
s In accordance with his dissent in Olympic Medical Corporation, 250
NLRIJ 146 (1980), Member Jenkins would award interest on the backpay
due based on the firmula set forth therein.
' Drapery Manufacturing Co.. Inc. and American White Goods Company.
170 NLRB 1706 (1968). Burgmeryr Bros.. Inc. supra.
1162
CAPITAL FIIM LABORATORIES, INC.
Furthermore, in view of the fact that Respond-
ent is no longer in operation and its former em-
ployees may be in different locations, we shall
order Respondent to mail each of its employees
employed on the date it ceased operations copies of
the attached notice signed by Respondent.
CONCI.USIONS F01 LAW
1. Capital Film Laboratories, Inc., is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Alliance of Theatrical Stage Em-
ployees, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By the acts described in section III, above,
Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Sec-
tion 8(a)(l) and (5) of the Act.
4. 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,
Capital Film Laboratories, Inc., Washington, D.C.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with International Alli-
ance of Theatrical Stage Employees, AFL-CIO,
concerning the effects on its employees in the ap-
propriate unit of the closing of Respondent's Wash-
ington, D.C., facility and the resulting layoffs.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with the
above-named Union with respect to the effects on
its employees of its decision to close its Washing-
ton, D.C., facility and lay off all technical employ-
ees and reduce to writing any agreement reached
as a result of such bargaining.
(b) Pay the terminated unit employees their
normal wages for the period set forth in the section
of this Decision and Order entitled "The Remedy."
(c) Establish a preferential hiring list of all em-
ployees in the appropriate unit following the
system of seniority provided for in the collective-
bargaining agreement or, if there is none, that
which is customarily applied to the conduct of Re-
spondent's business, and, if operations are ever re-
sumed in the Washington, D.C., area, offer rein-
statement to those employees. If, however, Re-
spondent resumes its operations at the original
Washington, D.C., facility, it shall offer all those in
the appropriate unit reinstatement to their former
or substantially equivalent positions.
(d) Preserve and, upon 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" 7 to each employee in the appropriate
unit who was employed by Respondent at its
Washington, D.C., facility immediately prior to Re-
spondent's closing of its Washington, D.C., facility.
Copies of said notice, on forms provided by the
Regional Director for Region 5, after being signed
by Respondent's authorized representative, shall be
mailed immediately upon receipt thereof, as herein
above directed.
(f) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
wvith.
11 the ect that this Order is enforced h .a Judgment of a United
Statesi CoIirt of Appcal. the o.ords in the notice reading "Posted by
Order hb Ihc National abhor Relations board" shall read "P, sted pursu-
anii to a Judgment of the United States Court of Appeal, Enrforcing all
Order of the Natilonal I thor Relations Hoard
APPENDIX
NOTIC_ To EMPIt oitat s
POSTEI) BY ORI)DER OF IHtHF
NA IIONAI LABOR REI ATIONS BOARI
An Agency of the United States Government
Wi Wl.l NOT refuse to bargain with Inter-
national Alliance of Theatrical Stage Employ-
ees, AFL-CIO, over the effects on our em-
ployees in the appropriate unit of the decision
to close our Washington, D.C., facility, and
the resulting layoffs.
Wli wi..I NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section
7 of the Act.
WI- wIn I, upon request, bargain collectively
with International Alliance of Theatrical Stage
Employees, AFL-CIO, concerning the effects
on our employees of our decision to close the
Washington, D.C., facility and wl wi.t
1163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reduce to writing any agreement reached as a
result of such bargaining.
WE WILL pay the terminated unit employees
who were employed at the above facility their
normal wages for a period required by a Deci-
sion and Order of the National Labor Rela-
tions Board.
WE WILL establish a preferential hiring list
of all terminated employees in the bargaining
unit following the system of seniority provided
for in the collective-bargaining agreement, or,
if there is none, that which is customarily ap-
plied to the conduct of our business and, if we
resume operations in the Washington, D.C.,
area, we shall offer these employees reinstate-
ment. If, however, we resume our operations
at the original Washington, D.C., facility, said
unit employees shall be offered reinstatement
to their former or substantially equivalent posi-
tions.
CAPITAL FILM LABORATORIES, INC.
1164