Cherry Auto Parts

National Labor Relations Board - Board Decisions

May 1, 2009

354 NLRB No. 10 (N.L.R.B. 2009)

354 NLRB No. 10
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Cherry Auto Parts, Inc. and Teamsters Local No. 20
a/w International Brotherhood of Teamsters.
Case 8–CA–38029
April 30, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and amended
charges filed by the Union on November 5, December 1
and 29, 2008, respectively, the General Counsel issued
the complaint on December 31, 2008, against Cherry
Auto Parts, Inc., the Respondent, alleging that it has vio-
lated Section 8(a)(5), (3), and (1) of the Act. The Re-
spondent failed to file an answer.
On February 23, 2009, the General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on February 25, 2009, the Board issued an order
transferring the proceeding 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.
Ruling on Motion for Default Judgment1
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 affirmatively states
that the answer must be received by the Regional Office
on or before January 14, 2009. Further, the undisputed
allegations in the General Counsel’s motion disclose that
the Region, by letter dated January 28, 2009, notified the
Respondent that unless an answer were received by Feb-
ruary 4, 2009, a motion for default judgment would be
filed.2

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The General Counsel’s brief in support of the motion for default
judgment indicates that the copy of the complaint sent by certified mail
on December 31, 2008, was subsequently returned to the Regional
Office as “unclaimed” by the Respondent. On January 28, 2009, the
Region sent by regular and certified mail to the Respondent a copy of
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, an Ohio corpo-
ration, with its office and place of business located in
Toledo, Ohio, has been engaged in the retail sale of used
automobile parts. During the 12-month period preceding
the issuance of the complaint, the Respondent, in con-
ducting the business operations described above, derived
gross revenues in excess of $500,000 and received goods
valued in excess of $50,000 directly from points located
outside the State of Ohio.
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 Teamsters Local No. 20 a/w Inter-
national Brotherhood of Teamsters, 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, Nevin Liber held the position of
the Respondent’s president, and has been a supervisor of
the Respondent within the meaning of Section 2(11) of
the Act and an agent of the Respondent within the mean-
ing of Section 2(13) of the Act.
The following employees of the Respondent, the unit,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All working foreman, mechanic, counterman, parts
man, burner, inside dismantle, and utility man employ-
ees employed by the Employer, excluding all office
personnel, computer tech personnel, marketing/sales
representatives, and all other employees as defined in
the Act.

the complaint and letter advising the Respondent of its obligation to
file an answer to the complaint. Neither mailing was returned to the
Regional Office; the documents sent by certified mail were unclaimed.
On February 12, 2009, the Region sent a letter to the address of the
Respondent’s designated agent, as listed in the Ohio Secretary of
State’s website showing that the Respondent is an active corporation,
noting the issuance of the complaint and extending the deadline to file
an answer to February 19, 2009. The Respondent did not file an an-
swer or respond to the letters. It is well settled that a respondent’s
failure or refusal to accept certified mail or to provide for appropriate
service cannot serve to defeat the purposes of the Act. See, e.g., I.C.E.
Electric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited therein.
Further, the failure of the Postal Service to return documents served by
regular mail indicates actual receipt of those documents by the Respon-
dent. Lite Flight, Inc., 285 NLRB 649, 650 (1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Since at least 1970, 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 successive collec-
tive-bargaining agreements, the most recent of which is
effective from October 1, 2003, to September 30, 2009.
At all times since 1970, based on Section 9(a) of the
Act, the Union has been the exclusive collective-
bargaining representative of the unit.
1. On about October 29, 2008, the Respondent noti-
fied its employees that they would be laid off and that the
Respondent was closing its facility.
2. The following named employees who were repre-
sented by the Union in the unit were laid off on October
29, 2008: Michael Broman, Jack Hartford, Erick Heard,
Richard Roberts, Harold Sparks, Greg Stewart, and Jason
Wallace.
3. Since about October 29, 2008, the Respondent has
continued to operate and is using low-seniority unit em-
ployees and nonbargaining unit employees to perform
bargaining unit work that was formerly performed by
laid off unit employees.
The subjects set forth above in paragraphs 1–3 relate to
wages, hours, and other terms and conditions of em-
ployment of the unit and are mandatory subjects for the
purposes of collective bargaining. The Respondent en-
gaged in the conduct described above without prior no-
tice to the Union and without affording the Union an
opportunity to bargain with the Respondent with respect
to this conduct and the effects of this conduct.
The Respondent engaged in the conduct described
above in paragraphs 1–3 because the named employees
joined and assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in
these activities.
4. Since about October 29, 2008, the Respondent,
through Nevin Liber, has failed and refused to bargain
with the Charging Party Union regarding its conduct set
out above in paragraphs 1–3.
CONCLUSIONS OF LAW
1. By the acts and conduct described above in para-
graphs 1–4, the Respondent has been interfering with,
restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, in violation of
Section 8(a)(1) of the Act.
2. By the conduct described above in paragraphs 1–3,
the Respondent has been discriminating in regard to the
hire or tenure or terms or conditions of employment of its
employees, thereby discouraging membership in a labor
organization, in violation of Section 8(a)(3) and (1) of
the Act.
3. By the conduct described above in paragraphs 1–4,
the Respondent has been failing and refusing to bargain
collectively and in good faith with the exclusive collec-
tive-bargaining representative of its employees within the
meaning of Section 8(d) of the Act, in violation of Sec-
tion 8(a)(5) and (1) of the Act.
4. The unfair labor practices of the Respondent affect
commerce within the meaning of 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)(3)
by laying off Michael Broman, Jack Hartford, Erick
Heard, Richard Roberts, Harold Sparks, Greg Stewart,
and Jason Wallace, we shall order the Respondent to
offer these employees full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority or
any other rights or privileges previously enjoyed. Fur-
ther, the Respondent shall make these employees whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them. Backpay 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).3
The Respondent shall also be required to expunge from
its files any and all references to the unlawful layoffs of
Michael Broman, Jack Hartford, Erick Heard, Richard
Roberts, Harold Sparks, Greg Stewart, and Jason Wal-
lace, and to notify them in writing that this has been done
and that the unlawful layoffs will not be used against
them in any way.
Further, having found that Respondent has failed and
refused to meet with the Union and that by this conduct
the Respondent has been failing and refusing to bargain
collectively and good faith with the Union as the exclu-
sive collective-bargaining representative of its employees
in violation of Section 8(a)(5), we shall order the Re-
spondent, on request, to meet and bargain in good faith
with the Union with respect to wages, hours, and other
terms and conditions of employment.
In addition, having found that the Respondent violated
Section 8(a)(5) by failing and refusing to bargain with

3 In the complaint, the General Counsel seeks compound interest
computed on a quarterly basis for any backpay or other monetary
awards. Having duly considered the matter, we are not prepared at this
time to deviate from our current practice of assessing simple interest.
See, e.g., Glen Rock Ham, 352 NLRB 516 at fn. 1 (2008), citing Rogers
Corp., 344 NLRB 504 (2005).
CHERRY AUTO PARTS, INC. 3
the Union specifically with respect to its decisions to
close its facility; to lay off the above-named employees;
and to continue to operate using low-seniority unit em-
ployees and nonbargaining unit employees to perform
bargaining unit work, we shall order the Respondent, on
request, to bargain with the Union about these decisions
and/or the effects of its decisions.4
Finally, we shall order the Respondent to preserve and,
within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, pro-
vide at the office designated by the Board or its agents, a
copy of all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
ORDER
The National Labor Relations Board orders that the
Respondent, Cherry Auto Parts, Inc., Toledo, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Notifying its employees that they would be laid off
and that the Respondent was closing its facility, because
the employees form, join, or assist the Union, or any
other labor organization, or engage in concerted activi-
ties, or to discourage employees from engaging in these
activities.
(b) Laying off its employees because the employees
form, join, or assist the Union, or any other labor organi-
zation, or engage in concerted activities, or to discourage
employees from engaging in these activities.
(c) Continuing to operate using low-seniority unit em-
ployees and nonbargaining unit employees to perform
bargaining unit work that was formerly performed by
laid-off unit employees because the employees form,
join, or assist the Union, or any other labor organization,
or engage in concerted activities, or to discourage em-
ployees from engaging in these activities.
(d) Failing and refusing to meet and bargain collec-
tively and in good faith with Teamsters Local No. 20 a/w
International Brotherhood of Teamsters, as the exclusive
collective-bargaining representative of the employees in
the following unit, with respect to wages, hours, and
other terms and conditions of employment:
All working foreman, mechanic, counterman, parts
man, burner, inside dismantle, and utility man employ-

4 The General Counsel seeks a limited back pay, effects-bargaining
remedy under Transmarine Navigation, 170 NLRB 389 (1968). Such a
remedy is unnecessary, however, in light of the circumstances here and
the other relief that we are granting, which will fully address the viola-
tions of Sec. 8(a)(3) and 8(a)(5) found.
ees employed by the Employer, excluding all office
personnel, computer tech personnel, marketing/sales
representatives, and all other employees as defined in
the Act.
(e) Failing and refusing to bargain collectively and in
good faith with the Union with respect to its decisions
and the effects of its decisions to close its facility; to lay
off unit employees; and to continue to operate using low-
seniority unit employees and nonbargaining unit employ-
ees to perform bargaining unit work.
(f) 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) Within 14 days from the date of this Order, offer
Michael Broman, Jack Hartford, Erick Heard, Richard
Roberts, Harold Sparks, Greg Stewart, and Jason Wal-
lace reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(b) Make whole Michael Broman, Jack Hartford, Erick
Heard, Richard Roberts, Harold Sparks, Greg Stewart,
and Jason Wallace for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, with interest, in the manner set forth in the remedy
section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful layoffs of
Michael Broman, Jack Hartford, Erick Heard, Richard
Roberts, Harold Sparks, Greg Stewart, and Jason Wal-
lace, and within 3 days thereafter, notify the employees
in writing that this has been done and that the unlawful
layoffs will not be used against them in any way.
(d) On request, meet and bargain with the Union as the
exclusive collective-bargaining representative of the unit
employees with respect to wages, hours, and other terms
and conditions of employment.
(e) On request, meet and bargain with the Union with
respect to its decisions and the effects of its decisions to
close its facility; to lay off unit employees; and to con-
tinue to operate using low seniority unit employees and
nonbargaining unit employees to perform bargaining unit
work.
(f) 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,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Toledo, Ohio, copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since about October 29, 2008.
(h) 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
comply.
Dated, Washington, D.C. April 30, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 mail and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice readying “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 notify our employees that they will be
laid off and that we are closing our facility because they
form, join, or assist the Union or any other labor organi-
zation, or engage in concerted activities, or to discourage
you from engaging in these activities.
WE WILL NOT lay off our employees because they
form, join, or assist the Union or any other labor organi-
zation, or engage in concerted activities, or to discourage
employees from engaging in these activities.
WE WILL NOT continue to operate using low-seniority
unit employees and nonbargaining unit employees to
perform bargaining unit work that was formerly per-
formed by laid-off unit employees because the employ-
ees form, join, or assist the Union or any other labor or-
ganization, or engage in concerted activities, or to dis-
courage employees from engaging in these activities.
WE WILL NOT fail and refuse to meet and bargain col-
lectively and in good faith with Teamsters Local No. 20
a/w International Brotherhood of Teamsters, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following unit with respect to wages,
hours, and other terms and conditions of employment:
All working foreman, mechanic, counterman, parts
man, burner, inside dismantle, and utility man employ-
ees employed by us, excluding all office personnel,
computer tech personnel, marketing/sales representa-
tives, and all other employees as defined in the Act.
WE WILL NOT fail and refuse to meet and bargain col-
lectively and in good faith with the Union with respect to
our decisions and/or the effects of our decisions to close
our facility; to lay off unit employees; and to continue to
operate using low seniority unit employees and nonbar-
gaining unit employees to perform bargaining unit work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Michael Broman, Jack Hartford, Erick Heard,
Richard Roberts, Harold Sparks, Greg Stewart, and Jason
Wallace reinstatement to their former positions or, if
such positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make whole Michael Broman, Jack Hartford,
Erick Heard, Richard Roberts, Harold Sparks, Greg
CHERRY AUTO PARTS, INC. 5
Stewart, and Jason Wallace for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful lay-
offs of Michael Broman, Jack Hartford, Erick Heard,
Richard Roberts, Harold Sparks, Greg Stewart, and Jason
Wallace, and WE WILL, within 3 days thereafter, notify
the employees in writing that this has been done and that
the layoffs will not be used against them in any way.
WE WILL, on request, meet and bargain with the Union
as the exclusive collective-bargaining representative of
the unit employees with respect to wages, hours, and
other terms and conditions of employment.
WE WILL, on request, meet and bargain with the Union
with respect to our decisions, and the effects of our deci-
sions, to close our facility; to lay off unit employees; and
to continue to operate using low seniority unit employees
and nonbargaining unit employees to perform bargaining
unit work; and if an understanding is reached, embody
the understanding in a signed agreement.
CHERRY AUTO PARTS, INC.