Creative Woodworking

National Labor Relations Board - Board Decisions

May 18, 1994

313 N.L.R.B. 1241 (N.L.R.B. 1994)

1241
313 NLRB No. 220
CREATIVE WOODWORKING
1 See Maislin Transport, 274 NLRB 529 (1985).
McCormac Woodworking Co., Inc. d/b/a Creative
Woodworking and Carpenters’ Local No. 978
affiliated with United Brotherhood of Car-
penters and Joiners of America, AFL–CIO.
Case 17–CA–16882–2
May 18, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
Upon a charge filed by Carpenters’ Local No. 978
affiliated with United Brotherhood of Carpenters and
Joiners of America, AFL–CIO (the Union) on August
3, 1993, the General Counsel of the National Labor
Relations Board issued a complaint and an amendment
to complaint on September 30, 1993, and March 7,
1994, respectively, against McCormac Woodworking
Co., Inc. d/b/a Creative Woodworking (the Respond-
ent) alleging that it has violated Section 8(a)(1) and (5)
of the National Labor Relations Act. Although the Re-
spondent filed an answer to the original complaint on
October 15, 1993, by letter dated March 15, 1994, it
subsequently withdrew that answer and advised that it
would make no response to the allegations in the
amendment to complaint.
On March 28, 1994, the General Counsel filed a
Motion for Summary Judgment with the Board. On
March 30, 1994, 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 Re-
spondent filed no response. The allegations in the mo-
tion 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
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, as indicated
above, the undisputed allegations in the Motion for
Summary Judgment disclose that although the Re-
spondent filed an answer to the original complaint, the
Respondent subsequently withdrew that answer. Such a
withdrawal has the same effect as the failure to file an
answer, i.e., the allegations in the complaint are con-
sidered admitted.1
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a Missouri
corporation with an office and place of business in
Springfield, Missouri, has been engaged in the oper-
ation of providing woodwork and carpentry work for
commercial contractors. During the 12-month period
ending February 28, 1993, the Respondent, in conduct-
ing its business operations, purchased and received at
its Springfield, Missouri facility goods valued in ex-
cess of $50,000 from enterprises located in the State
of Missouri who had received such goods directly from
points outside the State of Missouri.
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 the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent (the
unit), constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees em-
ployed by Respondent at its 1730 East Atlantic,
Springfield, Missouri facility EXCLUDING office
clerical employees and supervisors as defined in
the Act.
Since about 1986 and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit and since that date
the Union has been recognized as the representative by
the Respondent. This recognition has been embodied in
successive collective-bargaining agreements, the most
recent of which is effective from May 1, 1992, to
April 30, 1996.
At all times since 1986, based on Section 9(a) of the
Act, the Union has been the exclusive collective-bar-
gaining representative of the unit.
About February 19, 1993, the Respondent sold its
business to Creative Architectural Co.
About March 1, 1993, the Union, by letter, re-
quested that the Respondent meet and bargain with it
concerning the effects of the Respondent’s decision to
sell its business.
Since about March 3, 1993, and continuing to date,
the Respondent had failed and refused to meet and bar-
gain with the Union concerning the effects of the Re-
spondent’s decision to sell its business.
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 See also Live Oak Skilled Care & Manor, 300 NLRB 1040
(1990). In Transmarine, the Board ordered an employer that had un-
lawfully refused to bargain over the effects of its plant closure deci-
sion to, inter alia, pay unit employees at their normal rate of pay
beginning 5 days after the Board’s decision until the first of four
events: (1) an effects bargaining agreement was reached; (2) a bona
fide bargaining impasse was reached; (3) the union failed to timely
request or commence bargaining; or (4) the union failed to bargain
in good faith. Id. The Board further specified 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 the Re-
spondent’s employ.’’ Id.
As the complaint and motion are less than clear, however, as to
the actual impact, if any, of the sale of its business on the employ-
ees, we shall permit the Respondent to contest the appropriateness
of such a Transmarine backpay remedy at the compliance stage. See
United Exposition Service Co., 313 NLRB 1007 (1994).
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
4 Reasonable steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other mate-
rial.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively with the exclusive collective-bargaining rep-
resentative of its employees, and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) 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. Specifi-
cally, having found that the Respondent has failed and
refused since March 3, 1993, to meet and bargain over
the effects of its decision to sell its business to Cre-
ative Architectural Co., we shall order the Respondent,
on request, to bargain collectively with the Union over
the effects of its decision to sell its business. In addi-
tion, we shall accompany our bargaining order with a
limited backpay requirement designed both to make
whole the employees for losses they may have suffered
as a result of the violations and to recreate in some
practicable manner a situation in which the parties’
bargaining position is not entirely devoid of economic
consequences for the Respondent. We shall do so by
ordering the Respondent to pay backpay to the em-
ployees in a manner similar to that required in
Transmarine Navigation Corp., 170 NLRB 389
(1968).2 Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
Finally, in the event the Respondent’s facility is cur-
rently closed and the Respondent therefore has no
place of business to post the attached notice, we shall
order the Respondent to mail a copy of the attached
notice to the Union and to the last known addresses of
its former employees in order to inform them of the
outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, McCormac Woodworking Co., Inc. d/b/a
Creative Woodworking, Springfield, Missouri, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to meet and bargain collec-
tively with Carpenters’ Local No. 978 affiliated with
United Brotherhood of Carpenters and Joiners of
America, AFL–CIO, as the exclusive bargaining rep-
resentative of the employees in the unit described
below, concerning the effects of its decision to sell its
business on February 19, 1993, to the Creative Archi-
tectural Co.:
All production and maintenance employees em-
ployed by Respondent at its 1730 East Atlantic,
Springfield, Missouri facility EXCLUDING office
clerical employees and supervisors as defined in
the Act.
(b) In any like or related manner interfering with,
restraining, 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, meet and bargain in good faith with
the Union over the effects of its decision to sell its
business to Creative Architectural Co. on February 19,
1993.
(b) Pay limited backpay to the unit employees in the
manner set forth in the remedy section of this decision.
(c) 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 amounts due under
this Order.
(d) Sign copies of the attached notice marked ‘‘Ap-
pendix.’’3 Copies of the notice, on forms provided by
the Regional Director for Region 17, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent at its Springfield, Missouri
facility immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted.4 If the facility is closed, the Respondent shall
instead mail an exact copy of the signed notice to all
1243CREATIVE WOODWORKING
unit employees at their last known address and to the
Union at its business address.
(e) 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 has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to meet and bargain
collectively with Carpenters’ Local No. 978 affiliated
with United Brotherhood of Carpenters and Joiners of
America, AFL–CIO as the exclusive bargaining rep-
resentative of the employees in the unit described
below, concerning the effects of our decision to sell
our business on February 19, 1993, to the Creative Ar-
chitectural Co.:
All production and maintenance employees em-
ployed by us at our 1730 East Atlantic, Spring-
field, Missouri facility EXCLUDING office cleri-
cal employees and supervisors as defined in the
Act.
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, meet and bargain in good faith
with the Union over the effects of our decision to sell
our business to Creative Architectural Co. on February
19, 1993.
WE WILL pay limited backpay to the employees who
were employed by us, plus interest.
MCCORMAC WOODWORKING CO., INC.
D/B/A CREATIVE WOODWORKING