Cleartex Co.

National Labor Relations Board - Board Decisions

Sep 9, 1980

252 N.L.R.B. 37 (N.L.R.B. 1980)

CLEARTEX CO.
Cleartex Co. and Teamsters Local 837, Industrial
Workers Union, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 4-CA-10852
September 9, 1980
DECISION AND ORDER
Upon a charge filed on February 8, 1980, by
Teamsters Local 837, Industrial Workers Union, a/
w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
herein called the Union, and duly served on Clear-
tex Co., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 4, issued a com-
plaint and notice of hearing on March 21, 1980,
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)(l) and (5) 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. Re-
spondent failed to file any answer to the complaint
and the time for said filing under the Board's Rules
and Regulations expired on April 3, 1980.
On June 10, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 12, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent did
not file a response to the Notice To Show Cause.
On June 26, 1980, counsel for the General Counsel
submitted a Supplement to Motion for Summary
Judgment, in which it was noted that an answer to
the complaint was received by Region 4 on June 9,
1980. Respondent, however, did not file a certifi-
cate of service indicating that the answer had been
filed with the other parties. The answer was re-
ceived after the date on which General Counsel
had forwarded the Motion for Summary Judgment
but I day before the Board received the motion on
June 10, 1980. In its supplemental motion, General
Counsel asserts that Respondent did not set forth
an explanation for its untimely answer and, more-
over, there was no showing that the answer was
served on others required to be served. According-
ly, counsel for the General Counsel submits that its
Motion for Summary Judgment should be granted.
Upon the entire record in this proceeding, the
Board makes the following:
252 NLRB No. 7
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
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 served on
Respondent on March 21, 1980, specifically states
that unless an answer to the complaint was filed
within 10 days from the service thereof "all of the
allegations in the complaint shall be deemed to be
admitted true and may be so found by the Board."
As noted above, Respondent filed an untimely
answer, over 2 months after the deadline set for
filing, Respondent offered no explanation for its
untimely answer, and Respondent did not respond
to the Notice To Show Cause. No good cause to
the contrary having been shown, and in accord-
ance with the rules set forth above, the allegations
of the complaint are deemed to be admitted and
are found to be true. Accordingly, we grant the
General Counsel's Motion for Summary Judg-
ment. '
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a Pennsylvania corporation engaged in the
manufacture and nonretail sale of plastic products
from its 1730 North Fifth Street, Philadelphia,
Pennsylvania, facility. During the past year, in the
course and conduct of its business operations, Re-
spondent sold and shipped products valued in
excess of $50,000 directly to points located outside
the Commonwealth of Pennsylvania.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
i Edwin D Chapman d/b/a Day-Ti Construction Company, 249 NLRB
1095 (198().
37
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material
herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
With respect to the unfair labor practices, the
complaint alleges in substance that since on or
about February 26, 1969, and at all times material
herein, Respondent has recognized the Union as
the exclusive collective-bargaining representative
of Respondent's employees in a unit consisting of
all production and maintenance employees em-
ployed by Respondent at its 1730 North Fifth
Street, Philadelphia, Pennsylvania, facility, a unit
which is appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of
the Act. Such recognition has been embodied in
successive collective-bargaining agreements, the
most recent of which is effective by its terms for
the period March 26, 1979, to March 25, 1982. The
Union by virtue of Section 9(a) of the Act has
been, and is, the exclusive representative of the em-
ployees in the unit described above for the purpose
of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment. The complaint fur-
ther alleges that on or about February 4, 1980, Re-
spondent terminated its business operations and
since such time has failed and refused, and contin-
ues to fail and refuse, to bargain with the Union
concerning the effects of the termination.
Accordingly, we find that Respondent, by the
acts described above and by each of said acts, has
engaged in, and is now engaging in, unfair labor
practices affecting commerce within the meaning
of Section 8(a)(l) and (5) and Section 2(6) and (7)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom, and from like or related
conduct, and that it take certain affirmative action
to effectuate the policies of the Act. We have
found specifically that Respondent has violated
Section 8(a)(1) and (5) by its failure to bargain
about the effects of terminating its business oper-
ations. As a result of Respondent's unlawful failure
to bargain about such effects, the employees have
been denied an opportunity to bargain through
their contractual representative at a time when Re-
spondent was still in need of their services, and a
measure of balanced bargaining power existed.
Meaningful bargaining cannot be assured until
some measure of economic strength is restored to
the Union. A bargaining order 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 Re-
spondent to bargain with the Union concerning the
effects of its decision to terminate its business oper-
ations at its 1730 North Fifth Street, Philadelphia,
Pennsylvania, facility, and we shall include in our
Order a limited backpay requirement2 designed
both to make whole the employees for losses, if
any, suffered as a result of the violation and to re-
create in some practicable manner a situation in
which the Union's bargaining position is not entire-
ly devoid of economic consequences for Respond-
ent. We shall do so in this case by requiring Re-
spondent to pay backpay to its employees in a
manner similar to that required in Transmarine
Navigation Corporation and its Subsidiary, Interna-
tional Terminals, Inc., 170 NLRB 389 (1968). Thus,
Respondent shall pay 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 1730 North Fifth Street, Phila-
delphia, Pennsylvania, facility on unit employees;
(2) a bona fide impasse in bargaining; (3) the
Union's failure to request bargaining within 5 days
of this Decision's issuance or to commence negotia-
tions within 5 days of Respondent's notice of its
desire to bargain with the Union; or (4) the Union's
2 We have indicated that backpay orders are appropriate means of re-
medying 8(a)(5) violations of the type involved herein, even where such
violations are unaccompanied by a discriminatory shutdown of oper-
ations. Cf. Roval Plating and Polishing Co., Inc., 148 NLRB 545, 548
(1964), and cases cited therein.
38
CLEARTEX CO.
subsequent failure to bargain in good faith; but in
no event shall such sums paid to any of these em-
ployees exceed the amount each would have
earned as wages from February 4, 1980, the date
on which Respondent terminated its business oper-
ations, to the time they secured equivalent employ-
ment elsewhere, or the date on which 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 period at the rate of their
normal wages when last in Respondent's employ.
Backpay shall be based upon earnings which the
terminated employees would normally have re-
ceived during the applicable period, less any net in-
terim earnings, and shall be computed on a quarter-
ly basis in the manner set forth in F. W Woolworth
Company, 90 NLRB 289 (1950), with interest there-
on computed in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977). 3
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent, Cleartex Co., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Local 837, Industrial Workers
Union, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees
employed by Respondent at its 1730 North Fifth
Street, Philadelphia, Pennsylvania, facility consti-
tute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since on or about February 26, 1969, the
above-named labor organization has been and now
is the exclusive representative of all employees in
the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By failing and refusing on or about February
4, 1980, and at all times thereafter, to bargain col-
lectively with the above-named labor organization
as the exclusive bargaining representative of all the
employees of Respondent in the appropriate unit,
Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
a See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
Member Jenkins continues to adhere to his dissent in Olympic Medical
Corporation. 250 NLRB No. 11 (1980), with respect to he computation of
interest on backpay
6. By the aforesaid refusal to bargain as de-
scribed in section III, above, Respondent has inter-
fered with, restrained, and coerced, and is interfer-
ing with, restraining, and coercing, employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
7. 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,
Cleartex Co., Philadelphia, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Failing and refusing to bargain with Team-
sters Local 837, Industrial Workers Union, a/w In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive collective-bargaining representative of all
employees in the appropriate unit described below,
concerning the effects on said employees of its de-
cision to terminate business operations at its 1730
North Fifth Street, Philadelphia, Pennsylvania, fa-
cility, on or about February 4, 1980. The appropri-
ate unit is:
All production and maintenance employees
employed by the Respondent at its 1730 North
5th Street, Philadelphia, Pennsylvania, facility.
(b) 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 which
the Board finds will effectuate the policies of the
Act:
(a) Make whole production and maintenance em-
ployees employed by Respondent at its 1730 North
Fifth Street, Philadelphia, Pennsylvania, facility by
paying them their normal wages for the period set
forth in this Decision and Order.
(b) Recognize and, upon request, bargain collec-
tively with the above-named labor organization as
exclusive representative of the aforesaid employees,
with respect to the effects on such employees of its
decision to terminate business operations, and
reduce to writing any agreement reached as a
result of such bargaining.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Mail an exact copy of the attached notice
marked "Appendix" 4 to Teamsters Local 837, In-
dustrial Workers Union, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and to all production and
maintenance employees employed by the Employer
at its 1730 North Fifth Street, Philadelphia, Penn-
sylvania, facility; and post at such facility, or any
other facility to which it has subsequently moved,
copies of the attached notice marked "Appendix."
Copies of said notice, on forms provided by the
Regional Director for Region 4, after being duly
signed by its authorized representative, shall be
mailed immediately upon receipt thereof, as herein
directed.
(e) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I In the event that 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 Relations Board" shall read "Posted Pursu-
ant 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
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT fail and refuse to bargain
with Teamsters Local 837, Industrial Workers
Union, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive repre-
sentative of our employees in the appropriate
unit described below concerning the effects of
our decision to terminate our business oper-
ations on all production and maintenace em-
ployees employed at out 1730 North Fifth
Street, Philadelphia, Pennsylvania, facility.
The appropriate unit is:
All production and maintenance employees
employed by us at our 1730 North 5th
Street, Philadelphia, Pennsylvania, facility.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain collectively
with Teamsters Local 837, Industrial Workers
Union, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, with respect to the effects
of our decision to terminate our business oper-
ations on all production and maintenance em-
ployees employed at our 1730 North Fifth
Street, Philadelphia, Pennsylvania, facility, and
reduce to writing any agreement reached as a
result of such bargaining.
WE WILL make whole all production and
maintenance employees employed at our 1730
North Fifth Street, Philadelphia, Pennsylvania,
facility for any loss of pay they may have suf-
fered as a result of our failure to bargain about
the effect of the termination of our facility in
Philadelphia, Pennsylvania, for the period de-
cided by the National Labor Relations Board,
with interest.
CLEARTEX CO.
40