Corbin, Ltd.

National Labor Relations Board - Board Decisions

Oct 31, 2003

340 N.L.R.B. 1001 (N.L.R.B. 2003)

CORBIN, LTD. 1001
Corbin, Ltd. and Union of Needletrades, Industrial
and Textile Employees, UNITE, AFL–CIO.
Case 9–CA–40153
October 31, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
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 filed by the
Union on April 18, 2003, the General Counsel issued the
complaint on June 27, 2003, against Corbin, Ltd., the
Respondent, alleging that it has violated Section 8(a)(1)
and (5) of the Act. The Respondent failed to file an an-
swer.
On September 22, 2003, the General Counsel filed a
Motion for Default Judgment with the Board and memo-
randum in support. On September 24, 2003, 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 alle-
gations 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 Default Judgment
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 stated
that if the Respondent did not file an answer within 14
days from service of the complaint, all the allegations in
the complaint would be considered admitted. Further,
the undisputed allegations in the General Counsel’s mo-
tion disclose that the Region, by letter dated July 21,
2003, notified the Respondent that unless an answer was
received by July 30, 2003, a motion for default judgment
would be filed.
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.1

1 The allegations in the Motion for Default Judgment disclose that by
letter dated August 21, 2003, the Respondent’s bankruptcy attorney
notified the Region that the Respondent was in bankruptcy and asserted
that the Board proceedings were automatically stayed pursuant to Sec-
tion 362 of the Bankruptcy Code. It is well established that the institu-
tion of bankruptcy proceedings does not deprive the Board of jurisdic-
tion or authority to entertain and process an unfair labor practice case to
its final disposition. Phoenix Co., 274 NLRB 995 (1985). Board pro-
ceedings fall within the exception to the automatic stay provisions for
proceedings by a governmental unit to enforce its police or regulatory
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with offices and places of business in Huntington, West
Virginia and Cannonsburg, Kentucky (the Respondent’s
facilities), has been engaged in the manufacture and dis-
tribution of clothing.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its operations
described above, sold and shipped from both of its Hunt-
ington, West Virginia, and Cannonsburg, Kentucky fa-
cilities goods valued in excess of $50,000 directly to
points outside the State of West Virginia and the Com-
monwealth of Kentucky, respectively.
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 Union of Needletrades, Industrial
and Textile Employees, UNITE, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals have
held the positions set forth opposite their names and have
been supervisors of the Respondent within the meaning
of Section 2(11) of the Act and agents of the Respondent
within the meaning of Section 2(13) of the Act:

David R. Corbin President
John Karnes Director of Operations

The following employees of the Respondent (unit A),
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All of the employees of [Respondent] employed at its
1040 Vernon Street, Huntington, West Virginia facility,
but excluding executives, supervisory employees, plant
and office clerical employees, sales employees, custo-
dians and mechanics; also included as employees are
piecegoods department employees, receiving depart-
ment employees and fabric finishing department em-
ployees at [Respondent’s] Cannonsburg, Kentucky fa-
cility.
The following employees of the Respondent (unit B),
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:

powers. See id., and cases cited therein. Accord: NLRB v. Continental
Hagen Corp., 932 F.2d 828, 834–835 (9th Cir. 1991).
340 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1002
All of the employees of [Respondent] employed at its
Cannonsburg, Kentucky plant, excluding executives,
supervisory employees, office clerical employees, sales
employees, Golf Division employees, piecegoods de-
partment employees, receiving department employees,
fabric finishing department employees, custodians and
mechanics.

At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
unit A and unit B (the units), and the Union has been
recognized as such representative by the Respondent.
This recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of which is
effective from April 28, 2001, to April 27, 2004.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the units.
On about March 3 and April 10, 2003, the Union, by
letter, requested that the Respondent bargain collectively
about the effects of its decision to close its Huntington,
West Virginia, and Cannonsburg, Kentucky facilities and
to lay off the employees in the units.
Since about April 23, 2003, the Respondent has failed
and refused to bargain collectively about the above sub-
ject.
The subject set forth above relates to the wages, hours,
and other terms and conditions of employment of the
units and is a mandatory subject for the purposes of col-
lective bargaining.
CONCLUSION OF LAW
By failing and refusing to bargain with the Union
about the effects of its decision to close its Huntington,
West Virginia, and Cannonsburg, Kentucky facilities,
and to lay off the employees in the units, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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, to remedy
the Respondent’s unlawful failure and refusal to bargain
with the Union about the effects of the Respondent’s
decision to close its facilities and lay off the employees
in the units, we shall order the Respondent to bargain
with the Union, on request, about the effects of that deci-
sion. Because of the Respondent’s unlawful conduct,
however, the laid-off unit employees have been denied
an opportunity to bargain through their collective-
bargaining representative at a time when the Respondent
might still have been in need of their services and a
measure of balanced bargaining power existed. Mean-
ingful bargaining cannot be assured until some measure
of economic strength is restored to the Union. A bar-
gaining order alone, therefore, cannot serve as an ade-
quate remedy for the unfair labor practices committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violations and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Respon-
dent to pay backpay to the unit employees in a manner
similar to that required in Transmarine Navigation
Corp., 170 NLRB 389 (1968),2 as clarified in Melody
Toyota, 325 NLRB 846 (1998).
Accordingly, the Respondent shall pay its laid-off 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 occurrence of
the earliest of the following conditions: (1) the date the
Respondent bargains to agreement with the Union on
those subjects pertaining to the effects of the closing of
its facilities on its employees; (2) a bona fide impasse in
bargaining; (3) the Union’s failure to request bargaining
within 5 business days after receipt of this Decision and
Order, or to commence negotiations within 5-business
days after receipt of the Respondent’s notice of its desire
to bargain with the Union; or (4) the Union’s subsequent
failure to bargain in good faith.
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date on which they were laid off to the time they se-
cured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner. However, in no
event shall this sum be less than the employees would
have earned for a 2-week period at the rate of their nor-
mal wages when last in the Respondent’s employ. Back-
pay shall be based on earnings which the unit employees

2 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
The complaint and motion are less than clear with respect to whether
the Respondent implemented the decision to close its two facilities and
to lay off the employees. Thus, we do not know whether, or to what
extent, the refusal to bargain about effects had an impact on employees.
In these circumstances, we shall permit the Respondent to contest the
appropriateness of a Transmarine backpay remedy at the compliance
stage. See, e.g., Buffalo Weaving and Belting, 340 NLRB No. 80
(2003); and ACS Acquisition Corp., 339 NLRB 736 (2003).
CORBIN, LTD. 1003
would normally have received during the applicable pe-
riod, less any net interim earnings, and 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).
Finally, because the Respondent’s Huntington, West
Virginia, and Cannonsburg, Kentucky facilities have
apparently closed, we shall order the Respondent to mail
a copy of the attached notice to the Union and to the last
known addresses of the unit employees who were em-
ployed by the Respondent when it closed or announced
the closure of its Huntington, West Virginia, and Can-
nonsburg, Kentucky facilities, in order to inform them of
the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Corbin, Ltd., Huntington, West Virginia,
and Cannonsburg, Kentucky, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Union of Needletrades, Industrial and
Textile Employees, UNITE, AFL–CIO as the exclusive
collective-bargaining representative of employees in the
units set forth below, concerning the effects on the unit
employees of its decision to close its Huntington, West
Virginia and Cannonsburg, Kentucky facilities, and the
layoff of unit employees. The bargaining units are:
UNIT A
All of the employees of [Respondent] employed at its
1040 Vernon Street, Huntington, West Virginia facility,
but excluding executives, supervisory employees, plant
and office clerical employees, sales employees, custo-
dians and mechanics; also included as employees are
piecegoods department employees, receiving depart-
ment employees and fabric finishing department em-
ployees at [Respondent’s] Cannonsburg, Kentucky fa-
cility.
UNIT B
All of the employees of [Respondent] employed at its
Cannonsburg, Kentucky plant, excluding executives,
supervisory employees, office clerical employees, sales
employees, Golf Division employees, piecegoods de-
partment employees, receiving department employees,
fabric finishing department employees, custodians and
mechanics.
(b) 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) On request, bargain with the Union concerning the
effects on the unit employees of the Respondent’s deci-
sion to close its Huntington, West Virginia, and Can-
nonsburg, Kentucky facilities, and to lay off the unit em-
ployees, and reduce to writing and sign any agreement
reached as a result of such bargaining.
(b) Pay the unit employees 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 pertaining to the effects on its unit em-
ployees of the decision to close its facilities in Hunting-
ton, West Virginia, and Cannonsburg, Kentucky; (2) a
bona fide impasse in bargaining; (3) the Union’s failure
to request bargaining within 5-business days after receipt
of this Decision and Order, or to commence negotiations
within 5-business days after receipt of the Respondent’s
notice of its desire to bargain with the Union; or (4) the
Union’s subsequent failure to bargain in good faith; but
in no event shall the sum paid to any of the employees
exceed the amount they would have earned as wages
from the date on which they were laid off to the time
they secured equivalent employment elsewhere, or the
date on which the Respondent shall have offered to bar-
gain in good faith, whichever occurs sooner; provided,
however, that in no event shall this sum be less than the
employees would have earned for a 2-week period at the
rate of their normal wages when last in the Respondent’s
employ, with interest, as set forth in the remedy section
of this decision.
(c) 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,
necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”3 to the Union
and all unit employees who were employed by the Re-

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1004
spondent at the time that it closed or announced the clo-
sure of its Huntington, West Virginia, and Cannonsburg,
Kentucky facilities.
(e) 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.

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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT fail and refuse to bargain collectively
and in good faith with Union of Needletrades, Industrial
and Textile Employees, UNITE, AFL–CIO, as the exclu-
sive collective-bargaining representative of our employ-
ees in the following units, concerning the effects on the
unit employees of our decision to close our Huntington,
West Virginia, and Cannonsburg, Kentucky facilities,
and the layoff of unit employees. The bargaining units
are:
UNIT A
All of our employees employed at our 1040 Vernon
Street, Huntington, West Virginia facility, but exclud-
ing executives, supervisory employees, plant and office
clerical employees, sales employees, custodians and
mechanics; also included as employees are piecegoods
department employees, receiving department employ-
ees and fabric finishing department employees at our
Cannonsburg, Kentucky facility.
UNIT B
All of our employees employed at our Cannonsburg,
Kentucky plant, excluding executives, supervisory em-
ployees, office clerical employees, sales employees,
Golf Division employees, piecegoods department em-
ployees, receiving department employees, fabric finish-
ing department employees, custodians and mechanics.
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, on request, bargain with the Union con-
cerning the effects on unit employees of our decision to
close our Huntington, West Virginia, and Cannonsburg,
Kentucky facilities, and to lay off the unit employees,
and reduce to writing and sign any agreement reached as
a result of such bargaining.
WE WILL pay the unit employees limited backpay in
connection with our failure to bargain over the effects of
our decision to close our Huntington, West Virginia, and
Cannonsburg, Kentucky facilities, as required by the
Decision and Order of the National Labor Relations
Board.

CORBIN, LTD.