DeVlieg-Sundstrand

National Labor Relations Board - Board Decisions

Mar 27, 1992

306 N.L.R.B. 867 (N.L.R.B. 1992)

867
306 NLRB No. 173
DEVLIEG-SUNDSTRAND
1 The letters attached to the Respondent’s response indicate that
the Respondent, by letter dated July 25, 1991, declined the Union’s
request for information. Subsequent to the bankruptcy filing, the Re-
spondent’s president, by letter dated October 10, 1991, advised the
Union that the Respondent was prepared to comply with the infor-
mation request.
2 D. J. Electrical Contracting, 303 NLRB 820 fn. 1 (1991).
DeVlieg-Sundstrand and International Union UAW
and its Local 2051
DeVlieg, Inc. and International Union UAW and its
Local 2051. Cases 33–CA–9294 and 33–CA–
9525
March 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon charges filed by the International Union UAW
and its Local 2051, on December 17, 1990, and Au-
gust 13, 1991, the General Counsel of the National Re-
lations Board issued a consolidated complaint on No-
vember 13, 1991, against DeVlieg-Sundstrand also re-
ferred to as DeVlieg, Inc. (Respondent), alleging that
it has violated Section 8(a)(1) and (5) of the National
Labor Relations Act. Although properly served copies
of the charges and the consolidated complaint the Re-
spondent has failed to file an answer.
On December 23, 1991, the General Counsel filed a
Motion for Summary Judgment with exhibits attached.
On December 26, 1991, the Board issued an order
transferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be granted.
DeVlieg, Inc., Debtor-in-Possession, filed a response to
the Notice to Show Cause and the General Counsel
filed a motion in opposition to the response.
The National Labor Relations Board has delegated
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 Regulations
provides that the allegations in the consolidated com-
plaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. The complaint states that
unless an answer is filed within 14 days of service, all
the allegations in the complaint shall be deemed to be
admitted to be true and shall be so found by the
Board. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the counsel
for the General Counsel, by letter dated December 10,
1991, notified the Respondent that unless an answer
was received immediately, a Motion for Summary
Judgment would be filed.
The response to the Notice to Show Cause alleges
that the books and records of DeVlieg, as debtor-in-
possession, have been open to all parties in interest, in-
cluding the Union, since the date of the filing on Au-
gust 5, 1991, and that the Union has examined the
books.1 The response further alleges, on information
and belief, that as part of an agreement with the Board
or with the Union, brokered by the Board, the Re-
spondent notified the employees that it would bargain
in good faith regarding all matters. Further, the re-
sponse notes that as part of a stipulated order between
the Respondent and the Union certain specified griev-
ances would remain open. The response states that the
active work force is reduced to approximately six em-
ployees and that the Respondent’s operations will
cease prior to January 31, 1992, at which time the ter-
mination agreement between the parties will conclude
all the existing liabilities between the parties.
The response to the Notice to Show Cause fails to
explain the Respondent’s failure to answer the com-
plaint. Moreover, it does not adequately respond to the
allegations in the complaint. Thus, the response does
not mention the Respondent’s unilateral cessation of
health and dental insurance benefits. Although the re-
sponse attempts to respond to the Respondent’s failure
to provide the Union with requested information, the
response fails to state why the information was not
provided at the time of the original request. Although
the response states that the Respondent’s books are
now open to the Union, the Respondent is still failing
to specifically provide the Union with the information
in the original request. Further, even if the Union has
subsequently acquired the information, the failure to
supply the information in a timely manner is unlaw-
ful.2 The response asserts that the Board brokered an
agreement between the parties; however, there is no
evidence of that agreement or of Board participation in
any such agreement. In view of the above, the Re-
spondent has not shown good cause for failing to file
a timely answer. Accordingly, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
1. At all times material, the Respondent, a Michigan
corporation with an office and place of business lo-
cated at Belvidere, Illinois, has engaged in the business
of manufacturing machine tools and providing associ-
ated products and services.
2. During the 12-month period preceding the issu-
ance of the complaint, the Respondent, in the course
and conduct of its business operations described in
paragraph 1, sold and shipped from its Belvidere, Illi-
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nois facility finished products valued in excess of
$50,000 directly to points outside the State of Illinois
and purchased and caused to be transferred and deliv-
ered to its Belvidere, Illinois facility goods and mate-
rials valued in excess of $50,000, which were trans-
ported to the facility directly from States other than the
State of Illinois.
3. The Respondent is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
4. The Union is now, and has been at all times ma-
terial, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following constitutes a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All hourly paid and production and maintenance
employees at De-Vlieg-Sundstrand’s plant and Di-
visions located at Belvidere, Illinois, excluding of-
fice and shop clerical employees, chief inspectors,
assistant chief inspectors, chief of quality control,
first aid attendants and nurses, personnel depart-
ment employees, engineering department employ-
ees, experimental engineers, time study employ-
ees, watchmen and guards, salaried employees,
messengers, outside servicemen, superintendents,
assistant superintendents, foremen, assistant fore-
men, and all other supervisory employees.
Since an unknown but certain date prior to January
1, 1989, and at all times material, the Respondent has
recognized the Union as the exclusive bargaining rep-
resentative of the unit of employees described above.
Such recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of
which is effective by its terms for the period April 30,
1990, through April 29, 1993.
At all times since an unknown but certain date prior
to January 1, 1989, the Union, by virtue of Section
9(a) of the Act, has been, and is, the exclusive bar-
gaining representative of the unit for the purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment.
Since on or about July 1, 1990, Respondent has
ceased to maintain and continue health and dental in-
surance benefits as required by the collective-bar-
gaining agreement between the Respondent and the
Union.
The Respondent engaged in the acts and conduct de-
scribed above without prior notice to the Union and
without having afforded the Union an opportunity to
negotiate and bargain as the exclusive representative of
the Respondent’s employees with respect to such acts
and conduct.
Since on or about July 22, 1991, the Union, by let-
ter, has requested the Respondent to furnish the Union
with the following information:
1. Audited financial statements for 1989 and
1990.
2. Monthly and year-to-date financial state-
ments for more recent periods.
3. Data on backlog and future orders.
4. Information on financial transactions and ar-
rangements with DeVlieg-Bullard, Stanwich Part-
ners and any other related business.
5. Any other information which would help him
[the Union’s actuary] answer the following ques-
tions:
(A) Who owns DeVlieg and what is the fi-
nancial relationship between the parent com-
pany or owners of DeVlieg.
(B) What happened to the proceeds from the
sale of DeVlieg-Bullard?
(C) What is DeVlieg’s operating plan for im-
proving its financial health and covering its ob-
ligations?
The information requested by the Union is necessary
for, and relevant to, the Union’s performance of its
function as the collective-bargaining representative of
the unit employees.
Since on or about July 25, 1991, the Respondent, by
Ron Cantrell, has failed and refused to furnish the
Union the information requested.
CONCLUSION OF LAW
By ceasing to maintain and continue health and in-
surance benefits as required by the collective-bar-
gaining agreement, and by engaging in such conduct
without affording the Union the opportunity to nego-
tiate and bargain as the exclusive bargaining represent-
ative of the unit employees, and by refusing to provide
the Union with certain requested information, the Re-
spondent did engage and is engaging 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.
We shall order the Respondent to reinstate the
health and dental insurance coverage for its unit em-
ployees, and to make the employees whole for any
losses they may have suffered because of its dis-
continuance, plus interest. Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th
Cir. 1981), the amounts must be computed in the man-
869DEVLIEG-SUNDSTRAND
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.’’
ner set forth in Ogle Protection Service, 283 NLRB
682 (1970), with interest as computed in New Horizons
for the Retarded, 183 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, DeVlieg-Sundstrand, Belvidere, Illinois,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with International
Union UAW and its Local 2051, by unilaterally dis-
continuing providing health and dental insurance cov-
erage for its unit employees as required by the collec-
tive-bargaining agreement. The unit is:
All hourly paid and production and maintenance
employees at De-Vlieg-Sundstrand’s plant and Di-
visions located at Belvidere, Illinois, excluding of-
fice and shop clerical employees, chief inspectors,
assistant chief inspectors, chief of quality control,
first aid attendants and nurses, personnel depart-
ment employees, engineering department employ-
ees, experimental engineers, time study employ-
ees, watchmen and guards, salaried employees,
messengers, outside servicemen, superintendents,
assistant superintendents, foremen, assistant fore-
men, and all other supervisory employees.
(b) Failing and refusing to furnish the Union with
certain information necessary and relevant for the
Union’s performance as the exclusive collective-bar-
gaining representative of the unit employees.
(c) 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, reinstate the employees health and
dental insurance coverage and make unit employees
whole for any losses they may have suffered because
of its discontinuance, in the manner set forth in the
remedy section of this decision.
(b) On request, bargain collectively with the Union
by furnishing the Union with the following relevant
and necessary information:
1. Audited financial statements for 1989 and
1990.
2. Monthly and year-to-date financial state-
ments for more recent periods.
3. Data on backlog and future orders.
4. Information on financial transactions and ar-
rangements with DeVlieg-Bullard, Stanwich Part-
ners and any other related business.
5. Any other information which would help him
[the Union’s actuary] answer the following ques-
tions:
(A) Who owns DeVlieg and what is the fi-
nancial relationship between the parent com-
pany or owners of DeVlieg.
(B) What happened to the proceeds from the
sale of DeVlieg-Bullard?
(C) What is DeVlieg’s operating plan for im-
proving its financial health and covering its ob-
ligations?
(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 amount of payment
due under the terms of this Order.
(d) Post at its facility in Belvidere, Illinois, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 33, after being signed by the Respondent’s
Authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(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 Act and has ordered us to post and abide
by this notice.
WE WILL NOT refuse to bargain with the Inter-
national Union UAW and its Local 2051, by unilater-
ally discontinuing providing unit employees with
health and dental insurance coverage as required by the
collective-bargaining agreement. The unit is:
All hourly paid and production and maintenance
employees at De-Vlieg-Sundstrand’s plant and Di-
visions located at Belvidere, Illinois, excluding of-
fice and shop clerical employees, chief inspectors,
assistant chief inspectors, chief of quality control,
first aid attendants and nurses, personnel depart-
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment employees, engineering department employ-
ees, experimental engineers, time study employ-
ees, watchmen and guards, salaried employees,
messengers, outside servicemen, superintendents,
assistant superintendents, foremen, assistant fore-
men, and all other supervisory employees.
WE WILL NOT refuse to furnish the Union with cer-
tain information necessary and relevant for the Union’s
performance as your exclusive bargaining representa-
tive.
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, reinstate your health and den-
tal insurance coverage and make you whole for any
losses you may have suffered because of our dis-
continuance, with interest.
WE WILL, on request, bargain collectively with the
Union by furnishing the following relevant and nec-
essary information:
1. Audited financial statements for 1989 and
1990.
2. Monthly and year-to-date financial state-
ments for more recent periods.
3. Data on backlog and future orders.
4. Information on financial transactions and ar-
rangements with DeVlieg-Bullard, Stanwich Part-
ners and any other related business.
5. Any other information which would help him
[the Union’s actuary] answer the following ques-
tions:
A) Who owns DeVlieg and what is the finan-
cial relationship between the parent company or
owners of DeVlieg.
B) What happened to the proceeds from the
sale of DeVlieg-Bullard?
C) What is DeVlieg’s operating plan for im-
proving its financial health and covering its ob-
ligations?
DEVLIEG-SUNDSTRAND