Decor Group, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 2011

356 N.L.R.B. 1391 (N.L.R.B. 2011)

DÉCOR GROUP, INC. 1391
Décor Group, Inc. and New York New Jersey Region-
al Joint Board, Workers United, Local 132,
SEIU. Case 22–CA–29379
June 7, 2011
DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
On December 22, 2010, Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Décor
Group, Inc., Englewood, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 In adopting the judge’s finding that the instant 8(a)(5) charge
should not be deferred to arbitration, we find it unnecessary to rely on
his discussion of New Mexico Symphony Orchestra, 335 NLRB 896
(2001).
For the reasons stated by the judge, we reject the Respondent’s ar-
gument that the complaint must be dismissed because the Stipulation of
Voluntary Dismissal by the Trustees of the Laundry & Dry Cleaning
Workers and Allied Industries Health Fund (the Fund) and the Re-
spondent, terminating the Fund’s ERISA suit, precludes this cause of
action against the Respondent for ceasing healthcare contributions
when the collective-bargaining agreement expired. Additionally, con-
trary to the Respondent’s argument that the Stipulation constituted a
dismissal on the merits, it more likely reflected a lack of jurisdiction.
See, e.g., Laborers Health & Welfare Trust Fund v. Advanced Light-
weight Concrete Co., 484 U.S. 539, 551–553 (1988) (claim that re-
spondent ceased making fund contributions after expiration of collec-
tive-bargaining agreement must be brought before Board). In any event,
“the issue before the Board that could not have been raised in the court
proceeding initially is whether the Respondent’s refusal to make such
payments constitutes a violation of Section 8(a)(1) and (5) of the Act.”
Raymond Prats Sheet Metal Co., 285 NLRB 194, 195–196 (1987).
3 We have modified the recommended Order and notice to conform
to the violation found and to include, in the notice, the description of
employee Sec. 7 rights.
For the reasons stated in his dissenting opinion in J. Picini Flooring,
356 NLRB 11 (2010), Member Hayes would not require electronic
distribution of the notice.
1. Substitute the following for paragraph 1(a) of the
Order.
“(a) Failing and refusing to bargain in good faith with
the New York New Jersey Regional Joint Board, Work-
ers United, Local 132, SEIU, by unilaterally failing to
make contributions to the Trustees of the Laundry & Dry
Cleaning Workers and Allied Industries Health Fund on
behalf of the employees in the following appropriate
unit:

All full-time and regular part-time production workers
employed by Respondent at its Englewood, New Jersey
facility, excluding all office clerical employees, sales
employees, professional employees, guards and super-
visors, as defined in the Act.

2. Substitute the attached notice for that of the admin-
istrative law judge.
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 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail or refuse to bargain in good faith
with the New York New Jersey Regional Joint Board,
Workers United, Locals 132, SEIU, by unilaterally fail-
ing to make contributions to the Trustees of the Laundry
& Dry Cleaning Workers and Allied Industries Health
Fund on behalf of the employees in the following appro-
priate unit:

All full-time and regular part-time production workers
employed by us at our Englewood, New Jersey facility,
excluding all office clerical employees, sales employ-
ees, professional employees, guards 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
listed above.
356 NLRB No. 180

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1392
WE WILL make whole the Trustees of the Laundry &
Dry Cleaning Workers and Allied Industries Health Fund
for our failure to make contributions from November 1,
2009, as required by our July 1, 2005, through June 10,
2009 contract, as extended to October 31, 2009.
WE WILL make you whole for any expenses, if any, en-
suing from our failure to make the required payments to
the Health Fund set forth above.

DÉCOR GROUP, INC.

Tara Levy, Esq., for the General Counsel.
Richard S. Mazawey, Esq., of Clifton, New Jersey, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on April 8, 2010, by New York New Jersey Re-
gional Joint Board, Workers United, Local 132, SEIU (the Un-
ion), a complaint was issued on July 30, 2010, against Décor
Group, Inc. (Respondent or, the Employer).
The complaint, as amended at the hearing, alleges and the
Respondent’s answer admits that, following the expiration of its
collective-bargaining agreement with the Union, the Respond-
ent ceased making health care contributions on behalf of its unit
employees. The complaint further alleges and the Respondent
denies that it stopped making the contributions without notice
to the Union. The answer also asserted certain affirmative de-
fenses, which will be discussed below.
On October 21, 2010, a hearing was held before me in New-
ark, New Jersey. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after considering the
briefs filed by counsel for the General Counsel and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, a corporation having an office and place of
business in Englewood, New Jersey, has been engaged in the
business of designing and manufacturing high-end decorative
glassware in the tableware, cosmetic, perfume and spirits indus-
tries. During the past year, the Respondent derived revenue in
excess of $50,000 from the sale and shipment of goods directly
from its Englewood facility to points outside New Jersey. The
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The Respondent also admits, and I find that the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Collective-Bargaining Agreement
The Union has represented the employees of the Respondent
for at least 20 years. The Respondent admits that the Union has
been the designated exclusive collective-bargaining representa-
tive in the following admitted appropriate bargaining unit:

All full-time and regular part-time production workers em-
ployed by Respondent at its Englewood, New Jersey facility,
excluding all office clerical employees, sales employees, pro-
fessional employees, guards and supervisors, as defined in the
Act.

The parties’ last contract before this dispute ran from July 1,
2005, through June 30, 2009. It provided for the payment,
effective December 1, 2008, by the Employer of 14.3 percent of
the employees’ total gross earnings to the Trustees of the Laun-
dry & Dry Cleaning Workers and Allied Industries Health Fund
(Health Fund). The contract also provided for the payment of
these amounts monthly, not later than the 10th day of the month
following the month in which the amounts accrued.
The contract’s expiration date was extended twice, once
from June 30 to September 30, 2009, and then to October 31,
2009.
B. The Bargaining and the Health Fund Contributions
During negotiations for a successor contract, which began in
September or October 2009, the Employer objected to contrib-
uting to the Health Fund for every employee as it had in the
then current contract. The Respondent and the Union took
surveys of the employees and found that a certain percentage of
workers did not use the Union’s health plan because they had
other coverage. The Employer’s survey revealed that although
the Employer was paying for the use of the Union’s health plan
by 100 percent of the employees, in fact, only about 27 percent
of the employees were actually using that plan.
Union Agent Gomez recommended an “opt-in” program,
pursuant to which employees not having outside coverage may
enroll in the Union’s health plan, and the Employer would pay
for only those workers utilizing that plan.
The Respondent admits that beginning on about November
1, 2009, following the expiration of the last contract extension,
it ceased making health care contributions on behalf of the unit
employees. Union Representative Luis Gomez stated that he
received no advance notice that the Respondent would cease
making contributions to the Health Fund. In addition, there
was no evidence that the Union agreed that the Employer could
stop making such contributions.
Amalgamated Life, the organization which provides and ad-
ministers the Union’s Health Fund, sent a series of letters to the
Respondent from December 24, 2009, to April 23, 2010, advis-
ing it that its contributions to the Health Fund for the period
November 2009 through March 2010, were past due. Copies
were sent to the Union. Demand was made for immediate
payment of all delinquent contributions plus interest and liqui-
dated damages “as required by the collective bargaining agree-
ment and the Fund trust agreement.”
After first and second notices of delinquencies were sent to
the Respondent, a “third and final notice” was sent to the Em-
ployer on January 12, 2010, suspending the health and welfare
coverage for its employees based on its failure to pay contribu-
tions for November 2010.
DÉCOR GROUP, INC. 1393
Letters were also sent to the unit employees advising them of
the Respondent’s failure to make the appropriate contributions,
and informing them that the Fund would terminate their Health
Fund coverage, effective February 1, 2010.
On March 3, 2010, the parties reached agreement on a new
collective-bargaining contract, which runs from July 1, 2009, to
June 30, 2015. The new contract provides essentially for an
“opt-in” program in which payments to the Health Fund are not
based on the gross payroll of the entire unit, as was the case
with the expired contract. Rather, the new contract provides
that employees who do not have outside coverage through
Medicare or Medicaid may enroll in the Union’s Blue
Cross/Blue Shield insurance plan as set forth in its Health &
Welfare Plan. The Employer pays a certain percentage of the
cost of the plan only for those employees who enroll in the
plan. Enrollment in the Union Health & Welfare Plan is op-
tional.
On March 8, 2010, the Trustees of the Amalgamated Nation-
al Health Fund f/k/a UNITE HERE National Health Fund sued
the Employer in Federal court, alleging that contributions to the
Health Fund from November 1, 2009, through January 31,
2010, have not been made and are in arrears. The Employer
filed an answer, and on July 15, 2010, the parties entered into a
“Stipulation of Voluntary Dismissal.”
Analysis and Discussion
I. THE OBLIGATION TO MAKE PAYMENTS TO THE FUNDS
AFTER THE CONTRACT’S EXPIRATION
The Respondent argues that it was not obligated to make
contributions to the Union’s Health Fund because its contract
had expired. It further asserts that the Union made no objection
to its cessation of payments, and that both parties made “af-
firmative representations to each other that all rights to perfor-
mance under the expired contract were waived.”
The Board has held that an employer’s “obligation to pay
benefit fund contributions continues beyond the expiration date
of the contract until a successor agreement or lawful impasse is
reached.” Made 4 Film, Inc., 337 NLRB 1152, 1152 (2002).
Cibao Meat Products, Inc. v. NLRB, 547 F.3d 336, 339 (2d Cir.
2008); Derrico v. Sheehan Emergency Hospital, 844 F.2d 22,
26 (2d Cir. 1988). “Contractual terms, including benefit plans
and related reporting requirements, survive contract expiration
and cannot be altered without bargaining.” MBC Headwear,
Inc., 315 NLRB 424, 424 fn. 3 (1994); Lou’s Produce, 308
NLRB 1194, 1194 (1992).
The Board has also held that “when, as here, parties are en-
gaged in negotiations for a collective-bargaining agreement, an
employer’s obligation to refrain from unilateral changes ex-
tends beyond the mere duty to provide notice and an opportuni-
ty to bargain about a particular subject matter; rather it encom-
passes a duty to refrain from implementation at all, absent
overall impasse on bargaining for the agreement as a whole.”
RBE Electronics of S.D., 320 NLRB 80, 81 (1995).
The Respondent does not claim that it reached an impasse in
bargaining with the Union which permitted it to cease paying
the Health Fund contributions required in its expired contract,
and there is no evidence that it did reach impasse. Rather, the
Respondent just believed that it could stop such payments
simply because the contract expired.
As to the Respondent’s assertion that the Union did not ob-
ject to its ceasing making payments to the Health Fund, I credit
Union Agent Gomez’ testimony that after Amalgamated sent its
first notice of fund contributions’ delinquency in December
2009, he discussed with the Respondent in a January 2010 bar-
gaining session the fact that the Respondent had not made the
required payments. He told President Richard Engel and Vice
President Richard Engel Jr., that the Respondent was required
to make the contributions, and that Engel Sr. replied that he did
not believe that the Employer had to pay into the fund.
Moreover, Amalgamated Life sent the Respondent numerous
notices that it was delinquent in its fund contributions, and the
Respondent admits receiving those notices.
I accordingly find and conclude that the Respondent violated
Section 8(a)(5) of the Act by ceasing to make contributions to
the Health Fund from November 1, 2009.
II. THE RESPONDENT’S DEFENSES1
A. Deferral to Arbitration
The Respondent asserts that the charge should have been de-
ferred to the grievance procedure in the parties’ collective-
bargaining agreement, which was the same in the expired con-
tract and the renewal agreement. The grievance clause pro-
vides that the contractual grievance procedure “shall be the
exclusive means for the determination of . . . all complaints,
disputes, claims or controversies” and that no party or employ-
ee “shall institute any action or proceeding against the other in
any court of law or equity, state or federal, other than to compel
arbitration hereunder. . . . This provision shall be a bona fide
defense in any action or proceeding under this Agreement.”
Notwithstanding the broad nature of the grievance provision,
the Board has held that an employer’s failure to make fund
payments following the expiration of a contract is not presump-
tively arbitrable because the union’s right to payment did not
accrue or vest until after the contract expired. 15th Avenue Iron
Works, 301 NLRB 878, 879 (1991). Deferral is not an appro-
priate disposition of these allegations because postcontract
expiration delinquencies are not susceptible to prospective arbi-
tration. Indiana & Michigan Electric Co., 284 NLRB 53, 60
(1987), citing Nolde Bros., Inc. v. Bakery Workers, 430 U.S.
243 (1977).
In this respect, Nolde & Litton Financial Printing Div. v.
NLRB, 501 U.S. 190 (1991), relied on by the Respondent, are
inapposite. In Nolde, the Supreme Court found that a claim for
severance pay was in effect a dispute over deferred compensa-
tion for time already worked under the unexpired contract, and
thus the dispute involved rights which “accrued or vested” un-
der the unexpired agreement. In Litton, the Court held that a
dispute over the layoff of employees after the contract expired
1 The Respondent’s principal defenses are discussed here. Other af-
firmative defenses, which have not been proven and which have no
merit, are accord and satisfaction, judicial determination and award,
failure of consideration, want of consideration, fraud in the factum,
fraud in the inducement, illegality, laches, payment, statute of frauds,
waiver, and entire controversy doctrine.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1394
“did not involve facts and occurrences that arise before expira-
tion.” Here, any grievance the Union may have filed regarding
the failure of the Respondent to make contributions to the
Health Fund did not “arise under” the expired contract. The
grievances were “triggered by events or conduct that occurred
after the expiration of the contracts. None of the rights invoked
were worked for or accumulated over time, and there is no
other indication that the parties contemplated that such rights
could ripen or remain enforceable even after the contracts ex-
pired.” Indiana & Michigan, above at 61.
Moreover, the Supreme Court held in NLRB v. Strong, 393
U.S. 357, 360–361 (1969):

Admittedly, the Board has no plenary authority to administer
and enforce collective bargaining contracts. Those agree-
ments are normally enforced as agreed upon by the parties,
usually through grievance and arbitration procedures, and ul-
timately by the courts. But the business of the Board, among
other things, is to adjudicate and remedy unfair labor practic-
es. Its authority to do so is not affected by any other means of
adjustment or prevention that has been or may be established
by agreement, law, or otherwise [citing Section 10(a) of the
Act]. Hence, it has been made clear that in some circum-
stances the authority of the Board and the law of the contract
are overlapping, concurrent regimes, neither pre-empting the
other. Arbitrators and courts are still the principal sources of
contract interpretation, but the Board may proscribe conduct
which is an unfair labor practice even though it is also a
breach of contract remediable as such by arbitration and in the
courts. It may also, if necessary to adjudicate an unfair labor
practice, interpret and give effect to the terms of a collective
bargaining agreement.

Similarly, in a case involving the employer’s failure to make
full and timely payroll payments, the Board rejected the em-
ployer’s request that the matter be deferred to arbitration, hold-
ing that although other remedies exist, it is authorized to “rem-
edy conduct . . . that amounts to the repudiation of an obligation
under the collective-bargaining relationship.” New Mexico
Symphony Orchestra, 335 NLRB 896, 898 fn. 8 (2001).
B. Utilization Theory
The Respondent also argues that under a “utilization theory,”
since only 27 percent of its employees used the contractually
provided health benefits because they had other coverage, the
Respondent overpaid the Health Fund by paying for coverage
for 100 percent of its work force. This overpayment, it argues,
comprised a sum sufficient to compensate the Health Fund for
the contributions it did not make during the ensuing 16 months.
Therefore, according to the Respondent, it has already made the
Health Fund contributions it is charged with not paying. I can-
not agree.
The Respondent was required to make the fund contributions
in the expired contract to which it agreed. It had not made an
agreement with the Union that it would have to pay contribu-
tions only for those who used the Union’s Health Fund. Rather,
it was bound to its contract to make fund payments for its entire
payroll.
Accordingly, I cannot find merit in this theory.
C. Res Judicata and Collateral Estoppel
As set forth above, Amalgamated Life sued in Federal court,
alleging that contributions to the Health Fund from November
1, 2009, through January 31, 2010, had not been made and were
in arrears. The Employer filed an answer, and on July 15,
2010, the parties entered into a “Stipulation of Voluntary Dis-
missal.”
The Respondent argues that, inasmuch as a legal claim has
already been made by the Fund’s Trustees in Federal court, the
complaint here must be dismissed on the grounds of res judica-
ta, arguing that the same parties and the same claims are in-
volved. The General Counsel argues that the same parties are
not involved in both cases since the Trustees of the Funds sued
in Federal court, and a different party, the Union is the charging
party here. The Respondent, however, asserts that the Trustees
and the Union are “one in the same.”
The Union and the Union’s Funds are not “one in the same”
as argued by the Respondent. “It is well established that fund
trustees and administrators are separate parties from the union
and employees who establish the funds.” Fallon-Williams,
Inc., 336 NLRB 602, 604 (2001). Accordingly, the Board and
the Union were not parties to the court action. “The Board has
consistently held that the Government is not precluded from
litigating issues of Federal law even though related claims have
previously been decided in State or Federal courts in actions to
which the Government was not a party.” Fallon-Williams,
above at 604.
The Respondent further argues that the complaint must be
dismissed on the ground of collateral estoppel, asserting that
although the Union knew, in November 2009, that the Re-
spondent ceased making contributions to the Health Fund, it did
not object to the cessation of those payments and continued
bargaining, ultimately reaching agreement on a new contract in
March 2010. The Respondent claims that the Union “inten-
tionally and maliciously concealed the fact that it was planning
to file a charge alleging the unlawful cessation of Fund contri-
butions notwithstanding that the Union and the Respondent
“made affirmative representations to each other that all rights to
performance under the old CBA were waived. Décor clearly
relied on this information and representation during negotia-
tions in entering into the new CBA with the new Health Plan
Contribution clause.”
As set forth above, Gomez told the Respondent during bar-
gaining that it was required to make the Fund payments. In
addition, there is no requirement that a prospective charging
party union notify an employer that it intends to file a charge.
As set forth above, there was no evidence that the Union repre-
sented that the Respondent was not obligated to make the Fund
payments required under the expired contract.
However, the Respondent argues that it was led to believe
that all matters concerning the expired contract were resolved
by the execution of the new agreement. That contract states
that “all terms of this Agreement become effective as of the
date of ratification of this agreement with no retroactive appli-
cation of any item other than wages described . . . above.”
From this, the Respondent argues that the complaint must be
dismissed because the Union agreed not to pursue “retroactive”
matters. I cannot agree. It is clear that the reference in the new
DÉCOR GROUP, INC. 1395
agreement, executed in March 2010, applies to the terms of that
agreement. It states that “all terms of this agreement” (empha-
sis applied) may not be applied retroactively. In contrast, the
term which is the subject of this proceeding is the Health Fund
contributions which were a part of the expired agreement. Ac-
cordingly, I cannot find that the Union indicated “to the Com-
pany that there were no outstanding issues left to resolve.”
Both res judicata and collateral estoppel essentially require
that the court issue a final judgment on the merits which bars
further claims by the parties based on the same cause of action.
Here, of course, there was no final judgment on the merits. A
Stipulation of Voluntary Dismissal was entered into by the
parties, pursuant to which the matter was voluntarily dismissed
against the Employer. Accordingly, there was no decision on
the merits rendered in the court proceeding which could pre-
clude the Board from proceeding with this complaint.
In Raymond Prats Sheet Metal Co., 285 NLRB 194, 195
(1987), a case similar to this matter, the employer failed to pay
fringe benefit contributions to the union’s health and welfare
fund. The union’s fund brought an action in Federal court,
resulting in an order that the employer pay specific sums of
money. Thereafter, a charge was filed by the union and the
employer argued that the charges should be dismissed based on
the doctrines of res judicata and collateral estoppel. The Board
held that the res judicata and collateral estoppel defenses lack
merit because (a) the causes of action and the issues decided by
the district court were not the same as those presented for the
Board’s resolution (b) the Board and the union charging party
were not parties to the Federal court action and (c) the court
decided the issue whether the employer was required to make
contractual payments to various trust funds, whereas the issue
before the Board that could not have been raised in the court
proceeding is whether the employer’s refusal to make such
payments constituted a violation of Section 8(a)(1) and (5) of
the Act.
I accordingly reject the Respondent’s argument that the doc-
trines of res judicata or collateral estoppel bar the instant com-
plaint.
D. The Union’s Alleged Unclean Hands
The Respondent further argues that the complaint must be
dismissed because of the Union’s “unclean hands.” It argues
that the new collective-bargaining agreement requires the Un-
ion to offer health insurance to the employees as of March 3,
2010, but the Union did not begin providing such benefits until
July 1, and also did not provide employees with a plan benefits
book or a list of participating physicians. In addition, the Un-
ion allegedly did not honor the request of employee Mireya
Hernandez to be removed from the benefits plan as of July 1,
2010, but instead continued to bill the Employer and the Union.
Finally, the Union “unilaterally dropped” employee Ecolstico
Cedeno from the plan without notice.
Union Agent Gomez testified that discussions were held dur-
ing negotiations as to when the new “opt-in” contribution sys-
tem would become effective. The parties expected that it
would take 90 days, the period from the March 3 ratification
date to June 1, for the complete implementation of the new
system, but the program was not begun for another month, on
July 1, 2010. He noted that because the Respondent had
stopped payments to the Health Fund, the Fund would not
begin coverage immediately until the Respondent paid what it
owed under the old contract, or began payments pursuant to the
new collective-bargaining agreement. Since the Respondent
began such payments only in March 2010, there was a 1 month
delay in having the employees covered. Gomez noted that if
the Respondent had not ceased its payments under the old con-
tract, the employees would have been covered continuously
under the old health plan.
Clearly, based on this, if any party must bear the blame for
the delay in the resumption of coverage, it is the Respondent,
for unlawfully failing to make contributions from November 1,
2009, to March 1, 2010.
Richard Engle Jr. admitted that Gomez told him that there
would be a “gap” in coverage, and told the employees to save
their receipts and bills for medical care, and that the Union
would reimburse them. Engle also acknowledges that the em-
ployees were given their enrollment card containing their iden-
tification number, but that the plan benefits book was not pro-
vided.
Gomez stated that he distributed books of enrollment and
advised the employees as to which physicians they could see.
He also told them that Blue Cross/Blue Shield no longer issues
books listing the participating physicians, but that they could
call a phone number listed in their enrollment booklet, or check
on-line and obtain the names of participating physicians.
Accordingly, I find no wrongdoing by the Union in these re-
spects. In addition, the Board has held that the “unclean hands”
doctrine of equity does not operate against a charging party
because Board proceedings are not conducted for the vindica-
tion of private rights, but are brought in the public interest and
to effectuate the statutory policy. California Gas Transport,
347 NLRB 1314, 1326 fn. 36 (2006).
Finally, the Respondent argues that the Union suffered no
damages or financial loss due to its failure to make contribu-
tions to the Health Fund. I find and conclude that whether the
Union suffered any damages or financial loss is irrelevant to the
issues here.
CONCLUSIONS OF LAW
1. The following employees constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:

All full-time and regular part-time production workers em-
ployed by Respondent at its Englewood, New Jersey facility,
excluding all office clerical employees, sales employees, pro-
fessional employees, guards and supervisors, as defined in the
Act.

2. At all times material herein the Union has been the exclu-
sive collective-bargaining representative of the employees in
the above unit.
3. By ceasing to make contributions to the Trustees of the
Laundry & Dry Cleaning Workers and Allied Industries Health
Fund on behalf of the unit employees on about November 1,
2009, without prior notice to the Union and without affording
the Union the opportunity to bargain with the Respondent as to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1396
this conduct and the effects of this conduct, the Respondent
violated Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent must make whole the Trustees of the Laun-
dry & Dry Cleaning Workers and Allied Industries Health Fund
for its failure to make contributions from November 1, 2009 as
required by the parties’ July 1, 2005, through June 30, 2009
contract, as extended to October 31, 2009, including any addi-
tional amounts due to the Fund in accordance with Merry-
weather Optical Co., 240 NLRB 1213, 1216 (1979). The Re-
spondent shall also reimburse unit employees for any expenses
resulting form its failure to make such required payments or
contributions, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981).
Such amounts are to be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest at the rate prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6, 9–10 (2010).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Décor Group, Inc., Englewood, New Jer-
sey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union, by ceas-
ing to make contributions to the Trustees of the Laundry & Dry
Cleaning Workers and Allied Industries Health Fund on behalf
of the unit employees without prior notice to the Union and
without affording the Union the opportunity to bargain with the
Respondent as to this conduct and the effects of this conduct.
The appropriate collective-bargaining unit is:

All full-time and regular part-time production workers em-
ployed by Respondent at its Englewood, New Jersey facility,
excluding all office clerical employees, sales employees, pro-
fessional employees, guards and supervisors, as defined in the
Act.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.

(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 effec-
tuate the policies of the Act.
(a) Make whole the Trustees of the Laundry & Dry Cleaning
Workers and Allied Industries Health Fund for its failure to
make contributions from November 1, 2009, as required by the
parties’ July 1, 2005, through June 30, 2009 contract, as ex-
tended to October 31, 2009, in the manner set forth in the Rem-
edy section of this decision.
(b) Make whole the employees for any expenses, if any, en-
suing from its failure to make the required payments to the
Health Fund set forth above.
(c) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic 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, post at its
Englewood, New Jersey facility, copies of the attached notice,
marked “Appendix”3 Copies of the notice, on forms provided
by the Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 current employees and
former employees employed by the Respondent at any time
since November 1, 2009.
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 Judgment
of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.”