Deena Products Co., Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1990

297 N.L.R.B. 968 (N.L.R.B. 1990)

968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Deena Products Company, Inc. and United Industri-
al Workers, Service, Transportation, Profession-
al, and Government of North America of the
Seafarers International Union, Atlantic, Gulf,
Lakes and Inland Waters District, AFL-CIO.
Case 26-CA-13470
March 21, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
CIVIATT
Upon a charge filed by the Union on October 4,
1989, and an amended charge filed on January 16,
1990, the General Counsel of the National Labor
Relations Board issued a complaint on December
15, 1989, and an amendment to complaint on Janu-
ary 19, 1990, against Deena Products Company,
Inc , the Respondent, alleging that it has violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act Although properly served copies of the
charge, the amended charge, the complaint, and
the amendment to the complaint, the Respondent
has failed to file an answer
On January 26, 1990, the General Counsel filed a
Motion to Transfer Case to the Board and Motion
for Summary Judgment, with exhibits attached On
January 30, 1990, the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be
granted The Respondent filed no response The al-
legations in the motion are therefore undisputed
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
Section 102 20 of the Board's Rules and Regula-
tions 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 Both the complaint
and the amendment to the complaint' state that
unless an answer is filed within 14 days of service,
"all of the allegations in the [complaint/amendment
to complaint] shall be deemed to be admitted to be
true and shall be so found by the Board" Further,
the undisputed allegations in the Motion for Sum-
mary Judgment disclose that the Respondent tele-
phonically informed the Board's Regional Office
on January 12, 1990, that it did not intend to file an
answer to the complaint In the same day, the Re-
gional Office sent the Respondent a letter by certi-
, The amendment to the complaint merely adds reference to the filing
of the amended charge on January 16, 1990 It does not vary any of the
allegations of the complaint
fled mail, return receipt requested, confirming the
Respondent's telephone message
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 fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a corporation with an office
and place of business in Wickliffe, Kentucky, has
been engaged in the manufacture of lamps During
the 12-month period preceding issuance of the
complaint, the Respondent sold and shipped from
its Wickliffe, Kentucky facility products, goods,
and materials valued in excess of $50,000 directly
to points located outside the State of Kentucky
We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Union is a
labor organization within the meaning of Section
2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
Since about October 21, 1987, and at all times
material, the Union has been the exclusive collec-
tive-bargaining representative, within the meaning
of Section 9(a) of the Act, of the Respondent's em-
ployees in the following unit, which is appropriate
for bargaining within the meaning of Section 9(b)
of the Act
All production, maintenance and shipping em-
ployees employed by the Respondent at its
Wickliffe, Kentucky, facility, excluding all
office clericals, guards, professional employees
and supervisors as defined in the National
Labor Relations Act
The Respondent's recognition of the Union as
the exclusive bargaining representative of the unit
employees has been embodied in a collective-bar-
gaining agreement between the Respondent and the
Union, effective by its terms from November 1,
1987, to October 31, 1990
Since on or about April 4, 1989, the Respondent
has failed and refused to submit withheld union
dues to the Union and has failed and refused to
contribute to its employees' health and welfare
plan 2 Subsequently, the Respondent on or about
2 Although the complaint falls to allege specifically that the parties
extant collective-bargaining agreement provides for the Respond ,,, , to
deduct and to remit dues and to make contributions to the employees'
health and welfare plan, we find such allegations to be implicit and, in
the absence of any answer, uncontroverted
297 NLRB No 158
DEENA PRODUCTS CO 969
July 21, 1989, closed its Wickliffe, Kentucky facili-
ty The Respondent has failed and refused to nego-
tiate with the Union over the effects of the closing
Accordingly, we find that the aforementioned acts
of the Respondent violated Section 8(a)(5) and (1)
of the Act
CONCLUSION OF LAW
By failing and refusing since on or about April 4,
1989, to submit withheld dues to the Union and to
contribute to its employees' health and welfare
plan, and by failing and refusing since on or about
July 21, 1989, to bargain with the Union over the
effects on bargaining unit employees of the closing
of its Wickliffe, Kentucky facility, the Respondent
has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (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 designed to effectuate the policies of the
Act
We shall order that the Respondent make the
unit employees whole by paying all required con-
tributions to their health and welfare plan 3 The
Respondent shall also reimburse, with interest to be
computed in the manner set forth in New Horizons
for the Retarded, 283 NLRB 1173 (1987), its unit
employees for any expenses ensuing from its failure
to make health and welfare plan contnbutions
Kraft Plumbing ci Heating, 252 NLRB 891 fn 2
(1980), enfd 661 F 2d 940 (9th Cir 1981)
With respect to dues collected by the Respond-
ent but withheld from the Union, we shall order
that all such dues be remitted to the Union, with
interest to be computed in the manner prescribed in
New Horizons for the Retarded, supra
As a result of the Respondent's unlawful failure
to bargain about the effects of the closure of its
Wickliffe, Kentucky facility, unit employees have
been denied an opportunity to bargain through
their collective-bargaining representative at a time
when the Respondent was still in need of their
services and a measure of balanced bargaining
power existed Meaningful bargaining cannot be as-
sured until some measure of economic strength is
'Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide for the addition of a fixed
rate of Interest on unlawfully withheld fund payments at the adjuchcatory
stage of a proceeding We leave to the compliance stage the question
whether the Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy Such additional
amounts shall be determined in the manner set forth in Merryweather Op-
tical Co. 240 NLRB 1213, 1216 fn 7(1979)
restored to the Union A bargaining order alone,
therefore, cannot serve as an adequate remedy for
the unfair labor practices committed
Accordingly, we shall require the Respondent to
bargain with the Union, on request, about the ef-
fects on unit employees of closing the Wickliffe fa-
cility, and we shall also impose a limited backpay
requirement designed both to make the employees
whole for losses suffered as a result of the Re-
spondent's failure to bargain 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 Back-
pay shall be computed in the manner set forth in
Transmarme Corp, 170 NLRB 389 (1968), so that
the Respondent shall pay its employees amounts at
the rate of their normal wages when last in the Re-
spondent'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 Re-
spondent bargains to agreement with the Union on
those subjects pertaining to the effects of the clos-
ing of the Wickliffe facility, (2) a bona fide impasse
exists in bargaining, (3) the Union fails to request
bargaining within 5 days of the date of this Deci-
sion and Order or to commence negotiations within
5 days of the Respondent's notice of its desire to
bargain with the Union, or (4) the Union subse-
quently fails to bargain in good faith In no event
shall the sum paid to any of these employees
exceed the amount each would have earned as
wages from the time the Respondent closed its
Wickliffe facility 'to the time each secured equiva-
lent employment elsewhere, or the date on which
the Respondent shall have offered to bargain,
whichever occurs first, provided, however, that in
no event shall this sum be less than such employees
would have .earned for a 2-week period at the rate
of their normal wages when last in the Respond-
ent's employ Interest on backpay shall be paid in
the manner prescribed in New Horizons for the Re-
tarded, supra
ORDER
The National Labor Relations Board orders that
the Respondent, Deena Products Company, Inc ,
Wickliffe, Kentucky, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Failing and refusing to submit withheld dues
to United Industrial Workers, Service, Transporta-
tion, Professional, and Government of North
America of the Seafarers International Union, At-
lantic, Gulf, Lakes and Inland Waters District,
AFL-CIO
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Failing and refusing to make required contri-
butions to its employees' health and welfare plan
(c) Failing and refusing to bargain with the
Union about the effects of the closing of its Wick-
liffe, Kentucky facility on employees in the follow-
ing appropriate unit
All production, maintenance and shipping em-
ployees employed by the Respondent at its
Wickliffe, Kentucky, facility, excluding all
office clericals, guards, professional employees
and supervisors as defined in the National
Labor Relations Act
(d) 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 neces-
sary to effectuate the policies of the Act
(a) Submit to the Union all dues collected and
withheld from the Union since on or about April 4,
1989, as set forth in the remedy section of this De-
cision and Order
(b) Make whole unit employees and their health
and welfare plan fund for any expenses they in-
curred as a result of the Respondent's failure to
make required health and welfare plan contribu-
tions, as set forth in the remedy section of this De-
cision and Order
(c) On request, bargain with the Union as the ex-
clusive representative of the unit employees about
the effects on those employees of the closing of the
Wickliffe, Kentucky facility, and reduce to writing
any agreement reached as a result of such bargain-
ing
(d) Make whole unit employees for losses suf-
fered as a result of the Respondent's failure to bar-
gain about the effects of closing the Wickliffe facil-
ity, in the manner 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 copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(f) Mail an exact copy of the attached notice
marked "Appendix" to the Union and to all em-
ployees in the appropriate collective-bargaining
unit who were employed at the Wickliffe, Ken-
tucky facility at the time of its closing Copies of
4 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 Nation-
al 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"
the notice, on forms provided by the Regional Di-
rector for Region 26, after being signed by the Re-
spondent's authorized representative, shall be
mailed immediately upon receipt as above directed
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent 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 ordered us to post and abide by this notice
WE WILL NOT fail and refuse to submit employ-
ees' dues to the United Industrial Workers, Service,
Transportation, Professional, and Government of
North America of the Seafarers International
Union, Atlantic, Gulf, Lakes and Inland Waters
District, AFL-CIO
WE WILL NOT fail and refuse to make required
contributions to our employees' health and welfare
plan
WE WILL NOT fail and refuse to bargain in good
faith with the Union about the effect of our deci-
sion to close our Wickliffe, Kentucky facility on
employees in the following appropriate unit
All production, maintenance and shipping em-
ployees employed by Deena Products Compa-
ny, Inc at its Wickliffe, Kentucky, facility, ex-
cluding all office clericals, guards, professional
employees and supervisors as defined in the
National Labor Relations Act
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL submit to the Union, with interest, all
dues that we have collected and withheld from it
since on or about April 4, 1989
WE WILL make whole unit employees and their
health and welfare plan by making all health and
welfare plan contributions that we have unlawfully
failed to make and by reimbursing the employees,
with interest, for any expenses they incurred as a
result of our failure to make such payments
WE WILL, on request, bargain collectively with
the Union about the effects on our unit employees
of our decision to close our Wickliffe facility, and
WE WILL reduce to writing any agreement
reached as a result of such bargaining
DEENA PRODUCTS CO 971

WE WILL make unit employees whole, in the to bargain with the Union about the effects of clos-

manner set forth in the Board's Decision and ing our Wickliffe facility
Order, for losses suffered as a result of our failure
DEENA PRODUCTS COMPANY, INC