Chrissy Sportwear

National Labor Relations Board - Board Decisions

Sep 9, 1991

304 N.L.R.B. 988 (N.L.R.B. 1991)

988
304 NLRB No. 124
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This handwritten answer from the Respondent’s owner, John Viarella, ad-
mitted all the allegations in the May 21 complaint, including jurisdiction and
assertions that the Union was the 9(a) representative of unit employees and
that the Respondent failed to make contractually required fringe benefit pay-
ments.
2 The consolidated complaint alleged that the Respondent unlawfully: (1)
ceased making fringe benefit payments beginning about October 5, 1989; (2)
closed its operations without notifying the Union or affording it an opportunity
to bargain over the effects of the closure; and (3) unlawfully interfered with
employees’ Sec. 7 rights by advising unit employees that it would reopen as
a nonunion business.
3 Although the May 8 letter was not received by the Respondent, which had
moved without leaving a forwarding address, it was delivered to Viarella,
Foley, and Butler.
4 In comparable circumstances, the Board has found that an answer to a
complaint is not revived where: (1) the parties subsequently enter into a settle-
ment agreement; (2) the settlement agreement is breached; (3) the original
complaint allegations are renewed in a consolidated complaint; and (4) no
timely answer is filed to the consolidated complaint. See, e.g., Orange Data,
Inc., 274 NLRB 1018 (1985); Protection Sprinkler Systems, 295 NLRB 1072
(1989). In Orange Data and its progeny, however, the parties entered into in-
formal settlement agreements approved by the Regional Director and governed
by Form NLRB-4775. Form NLRB-4775 specifically provides that approved
settlement agreements withdraw outstanding complaints and answers. Con-
versely, here the parties privately settled the original complaint in Case 1–CA–
27215, and the Region’s dismissal of this complaint made no reference to an-
swers filed by the Respondent. Finally, although the Board has held that an-
swers can survive a breached settlement agreement and subsequent unanswered
consolidated complaint, this was in circumstances involving informal settle-
ment agreements before Form NLRB-4775 was modified to withdraw answers;
moreover, these cases have been narrowly construed. WUSS Radio, 236 NLRB
1529 (1978); Nottingham Restaurant, 243 NLRB 567 (1979); Frate Service,
255 NLRB 163 (1979). But see Orange Data, supra, 274 NLRB at 1019 fn.
4.
Chrissy Sportswear, Inc. and Boston Joint Board,
International Ladies’ Garment Workers’
Union, AFL–CIO. Cases 1–CA–27215 and 1–
CA–27895
September 9, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Upon a charge filed by the Union on April 5, 1990,
in Case 1–CA–27215, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
May 21, 1990, against Chrissy Sportswear, Inc., the
Respondent, alleging that it has violated Section
8(a)(1) and (5) of the National Labor Relations Act.
On September 20, 1990, the Respondent filed an an-
swer admitting all the allegations in that complaint.1
On October 18, 1990, the Region issued an order
withdrawing notice of hearing and dismissing com-
plaint after the Union withdrew its unfair labor practice
charge and stated that the parties had reached a private
settlement agreement. In its October 18 order, the Re-
gion specified that Case 1–CA–27215 could be rein-
stated if the private settlement agreement were
breached.
On December 20, 1990, the Union filed a charge in
Case 1–CA–27895, alleging that the Respondent vio-
lated Section 8(a)(1) and (5), and requesting that Case
1–CA–27215 be reopened. On January 2, 1991, the
Union amended its charge in Case 1–CA–27895. On
February 12, 1991, the Regional Director for Region 1
issued an order withdrawing approval of the Union’s
withdrawal request and reinstating the charge in Case
1–CA–27215.
On February 15, 1991, the General Counsel issued
a consolidated complaint in Cases 1–CA–27215 and 1–
CA–27895 alleging that the Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.2 Although properly
served with copies of the charges and consolidated
complaint, the Respondent has failed to file an answer.
On May 8, 1991, counsel for the General Counsel
wrote the Respondent, its owner, Viarella, its attorney,
Joseph P. Foley, and its trustee in bankruptcy, Joseph
G. Butler, that, pursuant to Sections 102.20 and 102.21
of the Board’s Rules and Regulations, a timely answer
had not been filed. The letters specified that unless an
answer was filed by May 17, 1991, a motion for sum-
mary judgment would be filed. No answer was filed to
the consolidated complaint.3
On July 15, 1991, the General Counsel filed a mo-
tion to transfer (Cases 1–CA–27215 and 1–CA–27895)
to the Board for decision and for summary judgment
against the Respondent, with attached exhibits. On July
17, 1991, 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 Respond-
ent 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 Summary Judgment
In his Motion for Summary Judgment the General
Counsel contends that the Respondent has failed to file
an answer to the consolidated complaint and that,
under Section 102.20 of the Board’s Rules and Regula-
tions, the Board should find the allegations of the con-
solidated complaint to be true and issue an order based
on those findings. The Respondent did, however, file
an answer to the original May 21, 1990 complaint in
Case 1–CA–27215. Moreover, one of the allegations in
that complaint–-the Respondent’s failure to make fund
contributions beginning October 5, 1989–-is incor-
porated in the February 15, 1991 consolidated com-
plaint.
Although the Respondent’s September 20 answer ar-
guably is no longer in effect, given the parties’ subse-
quent settlement agreement and the Region’s dismissal
of the May 21, 1990 complaint,4 we need not resolve
this issue. Thus, even assuming, arguendo, that the Re-
spondent’s September 20 answer was timely and re-
mains in effect, it admits all the allegations in the May
21 complaint. Accordingly, the answer raises no mate-
rial issues of fact or law warranting a hearing, or ren-
989CHRISSY SPORTSWEAR
5 The Respondent apparently instituted bankruptcy proceedings on an undis-
closed date. (We note that counsel for the General Counsel’s May 8, 1990 let-
ter is addressed to the Respondent’s ‘‘Trustee in Bankruptcy.’’) It is well set-
tled that the institution of bankruptcy proceedings does not deprive the Board
of jurisdiction to process unfair labor practice cases. Katco, Inc., 295 NLRB
No. 92 (June 30, 1989) (not published in Board volumes).
6 The Motion for Summary Judgment and supporting exhibits do not indi-
cate that the Union requested bargaining over the effects of the Respondent’s
closure decision. This failure to request bargaining does not constitute a waiver
of the Union’s bargaining rights. The Respondent was obligated to provide the
Union with preimplementation notice of its closure decision in order to satisfy
its effects-bargaining obligation. See Los Angeles Soap Co., 300 NLRB 289
fn. 1 (1990). Instead, the Respondent presented the Union with a fait accompli.
Willamette Tug & Barge Co., 300 NLRB 282, 283 (1990). In these cir-
cumstances, and in the absence of any special or emergency circumstances jus-
tifying the Respondent’s failure to provide advance notice of the closure, the
Union did not waive its bargaining rights. See, e.g., Handy Spot, Inc., 279
NLRB 1320, 1334 (1986).
dering summary judgment inappropriate. Auburn Die
Co., 282 NLRB 1044 (1987).
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in Boston, Massachusetts, is a con-
tract manufacturer in the garment industry. Annually,
the Respondent performs stitching services valued in
excess of $50,000 for Dash, Inc. in Boston. Annually,
Dash, Inc. sells and ships from its Norwood, Massa-
chusetts location garments valued in excess of $50,000
directly to points located outside the Commonwealth
of Massachusetts.
We find that the Respondent 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 organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All nonsupervisory production, maintenance,
packing and shipping workers employed by Re-
spondent at its Boston, Massachusetts location,
excluding office clerical employees, professional
employees, guards and all supervisors as defined
in the Act.
Since 1985, and at all times material, the Union has
been the designated exclusive representative of the em-
ployees in the unit, and since that date, has been rec-
ognized by the Respondent. The recognition has been
embodied in successive collective-bargaining agree-
ments, the most recent of which was effective by its
terms from June 15, 1988, to June 15, 1991.
B. Refusal to Comply with Contract
From about October 5, 1989, to November 16, 1990,
the Respondent has failed and refused to pay contrac-
tually required fringe benefit contributions to the
Union’s Health and Welfare Fund, the ILGWU Na-
tional Retirement Fund, and the ILGWU Health Serv-
ices Plan (Funds).
About September 25, 1990, the Respondent entered
into an agreement with the Union to pay current
monthly contributions to the Funds as they became
due. The Respondent further agreed to reimburse the
Funds for $67,083.95 in arrearages through weekly
payments of $200, commencing November 1, 1990.
Since about October 20, 1990, the Respondent has
failed to make its required monthly contributions to the
Funds.
Since about November 1, 1990, the Respondent
failed to make any weekly payments towards the dis-
charge of its $67,083.95 in arrearages to the Funds.
C. Failure to Notify Union of Closure or to
Engage in Effects Bargaining
About November 16, 1990, the Respondent closed
its Boston facility without prior notice to the Union
and without affording the Union an opportunity to bar-
gain about the effects of the closure.5
D. Interference with Employee Rights
Between November 19 and 26, 1990, after the Re-
spondent closed its Boston facility, either its president,
Viarella, or treasurer, So Sun Chow, told employees
that it intended to reopen nearby as a nonunion em-
ployer.
CONCLUSIONS OF LAW
1. By the acts and conduct described in paragraph
II,B, specifically the Respondent’s failure to make
Fund contributions from approximately October 5,
1989, until its closure about November 16, 1990, as re-
quired under the 1988–1991 collective-bargaining
agreement, the Respondent has been 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.
2. By the acts and conduct described in paragraph
II,C, specifically the Respondent’s closure of its Bos-
ton facility without prior notice to the Union and with-
out affording the Union an opportunity to bargain
about the effects of this closure, the Respondent has
been engaging 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.6
3. By the acts described above in paragraph II,D,
and by each of them, the Respondent has interfered
with, restrained, and coerced, and is interfering with,
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 This shall include reimbursing employees for any contributions they them-
selves may have made, with interest, for the maintenance of any of the Funds
after the Respondent ceased making required benefit fund payments. Concord
Metal, 295 NLRB 912, 914 (1989).
8 The Board does not provide at the adjudicatory stage of the proceeding
for the addition of interest at a fixed rate on unlawfully withheld fund pay-
ments. Any additional amounts owed with respect to any funds established in
the agreement will be determined in accordance with the procedure set forth
in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
restraining, and coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, and the
Respondent thereby has been engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(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 de-
signed to effectuate the policies of the Act.
We shall order the Respondent to make its employ-
ees and employee benefit funds whole, as prescribed in
Ogle Protection Service, 183 NLRB 682 (1970), and
Kraft Plumbing & Heating, 252 NLRB 891 (1980), for
any losses suffered as a result of the Respondent’s fail-
ure to make required contributions to the Union’s
Health and Welfare Fund, the ILGWU National Retire-
ment Fund, and the ILGWU Health Services Plan,7
with interest to be computed in the manner prescribed
in New Horizons for the Retarded, 282 NLRB 1173
(1987).7
We shall order the Respondent, on request, to bar-
gain with the Union about the effects of its closure of
the Boston facility. We shall require the Respondent to
pay unit employees laid off or discharged because of
the closure their normal wages in accordance with the
provisions of Transmarine Navigation Corp., 170
NLRB 389 (1969). Thus, we shall order the Respond-
ent to pay 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 earliest of the following conditions: (1) the
date the Respondent bargains to agreement with the
Union on the effects on unit employees of the closure
of the Boston facility; (2) a bona fide impasse in bar-
gaining; (3) the failure of the Union to request bargain-
ing within 5 days of this Decision and Order, or to
commence negotiations within 5 days of the Respond-
ent’s notice of its desire to bargain with the Union; (4)
the subsequent failure of the Union to bargain in good
faith; but in no event shall the sum paid to any of
these employees exceed the amount the employee
would have earned as wages from the date on which
the Respondent closed its Boston facility to the time
the employee secured equivalent employment else-
where, or the date on which the Respondent shall have
offered to bargain, whichever occurs sooner; provided,
however, that in no event shall this sum be less than
these employees would have earned for a 2-week pe-
riod at a rate of their normal wages when last in the
Respondent’s employ. Interest on all sums shall be
paid in the manner prescribed in New Horizons for the
Retarded, supra. Finally, in view of the Respondent’s
closure of its Boston facility, we shall require that the
notice be mailed to the employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Chrissy Sportswear, Inc., Boston, Massa-
chusetts, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain with Boston Joint
Board, International Ladies’ Garment Workers’ Union,
AFL–CIO as the exclusive bargaining representative of
the employees in the bargaining unit by failing and re-
fusing from about October 5, 1989, to about November
16, 1990, to make contractually required payments to
the Union’s Health and Welfare Fund, ILGWU Na-
tional Retirement Fund, and ILGWU Health Services
Plan. The bargaining unit is:
All nonsupervisory production, maintenance,
packing and shipping workers employed by Re-
spondent at its Boston, Massachusetts location,
excluding office clerical employees, professional
employees, guards and all supervisors as defined
in the Act.
(b) Failing and refusing to bargain collectively and
in good faith with Boston Joint Board, International
Ladies’ Garment Workers’ Union, AFL–CIO as to the
effects on unit employees of the closure of the Re-
spondent’s Boston facility.
(c) Interfering with employees’ Section 7 rights by
advising unit employees that it planned to reopen its
closed facility nearby as a nonunion operation.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Pay the Union’s Health and Welfare Fund, the
ILGWU National Retirement Fund, and the ILGWU
Health Services Plan payments that became due under
the collective-bargaining agreement from about Octo-
ber 5, 1989, until about November 16, 1990, with in-
terest, as set forth in the remedy section of this deci-
sion.
(b) Make whole unit employees for any losses they
may have suffered because of the Respondent’s failure
to make payments to the Union’s Health and Welfare
Fund, the ILGWU National Retirement Fund, and the
ILGWU Health Services Plan as required under the
collective-bargaining agreement, with interest, as set
forth in the remedy section of this decision.
991CHRISSY SPORTSWEAR
9 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(c) Bargain, on request, with the Union regarding
the effects of closing the Boston facility.
(d) Pay unit employees laid off or discharged be-
cause the Respondent closed its Boston Facility their
normal wages for the period set forth in the remedy
section of this Decision and Order.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of money due
under the terms of this Order.
(f) Mail signed and dated copies of the attached no-
tice marked ‘‘Appendix’’9 to the Union and to all unit
employees employed as of the date of the 1989 closing
of the Respondent’s Boston facility. Copies of the no-
tice, on forms provided by the Regional Director for
Region 1, after being signed by the Respondent’s au-
thorized representative, shall be mailed immediately
upon receipt by the Respondent to the last known ad-
dress of each employee.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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 had or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Boston Joint
Board, International Ladies’ Garment Workers’ Union,
AFL–CIO as the exclusive representative of the em-
ployees in the bargaining unit by failing and refusing
from about October 5, 1989, to about November 16,
1990, to make contractually required payments to the
Union’s Health and Welfare Fund, the ILGWU Na-
tional Retirement Fund, and the ILGWU Health Serv-
ices Plan. The bargaining unit is:
All nonsupervisory production, maintenance,
packing and shipping workers employed by Re-
spondent at its Boston, Massachusetts location,
excluding office clerical employees, professional
employees, guards and all supervisors as defined
in the Act.
WE WILL NOT fail or refuse to bargain collectively
and in good faith with Boston Joint Board, Inter-
national Ladies’ Garment Workers’ Union, AFL–CIO
as to the effects on you of the closure of our Boston
facility.
WE WILL NOT interfere with your Section 7 rights
by stating that we plan to reopen our closed facility as
a nonunion operation.
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 pay the Union’s Health and Welfare Fund,
the ILGWU National Retirement Fund, and the
ILGWU Health Services Plan amounts that have be-
come due under the collective-bargaining agreement
from about October 5, 1989, to about November 16,
1990, with interest.
WE WILL make you whole, with interest, for any
losses to you resulting from our failure to make pay-
ments to the Union’s Health and Welfare Fund, the
ILGWU National Retirement Fund, and the ILGWU
Health Services Plan, as required under the collective-
bargaining agreement.
WE WILL pay unit employees laid off or discharged
because of the closure of the Boston facility limited
backpay with interest, as required by the National
Labor Relations Board.
WE WILL, on request, bargain with the Union re-
garding the effects of closing the Boston facility.
CHRISSY SPORTSWEAR, INC.