DO Group Systems, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 2006

347 N.L.R.B. 44 (N.L.R.B. 2006)

347 NLRB No. 44
DO Group Systems, Inc. and Southern Council of
Industrial Workers and Ship, Mill and Indus-
trial Local Union 2892, affiliated with the United
Brotherhood of Carpenters and Joiners of
America. Case 26–CA–22210
June 29, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
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 and first and
second amended charges filed by the Union on Septem-
ber 1, October 31, and December 27, 2005, respectively,
the Acting General Counsel issued the complaint on De-
cember 29, 2005 against DO Group Systems, Inc., 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 March 10, 2006, the General Counsel filed a Mo-
tion for Default Judgment with the Board. Thereafter, on
March 15, 2006, 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 allegations 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 a 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 unless an answer was filed by January 12, 2006, all
the allegations in the complaint could be considered ad-
mitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated January 20, 2006, notified the Respondent that
unless an answer was received by February 3, 2006, 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.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Arkansas
corporation with an office and place of business in
Marked Tree, Arkansas, was engaged in the manufacture
of office furniture. During the 12-month period ending
July 1, 2005, the Respondent, in conducting its business
operations described above, sold and shipped from its
Marked Tree, Arkansas facility goods valued in excess of
$50,000 directly to points located outside the State of
Arkansas, and purchased and received at its Marked
Tree, Arkansas facility goods valued in excess of
$50,000 directly from points located outside the State of
Arkansas.
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 Southern Council of Industrial
Workers and Ship, Mill and Industrial Local Union 2892,
affiliated with the United Brotherhood of Carpenters and
Joiners of America (the Union) 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 held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and/or agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Todd R. Bridges - President
Timothy Dean - Secretary
Thomas Hurst - Controller
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees employed
at the Respondent’s Marked Tree, Arkansas plant, ex-
cluding all office clerical employees, professional em-
ployees, guards and supervisors as defined by the Act.
Since about the 1960s and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit and since then has
been recognized as the representative by the Respondent.
This recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent being effec-
tive from November 1, 2003 through April 30, 2005.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
About April 2005, the Respondent, by Todd R.
Bridges, told the Union that it was unwilling to enter into
contract negotiations due to its financial inability to pay.
On about April 18, 2005, the Union, by letter, re-
quested that the Respondent furnish the Union with proof
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
of the Respondent’s inability to pay to justify its refusal
to enter into contract negotiations.
On about May 27, 2005, the Union orally requested
that the Respondent furnish the Union with the following
information:
A list showing names, addresses, phone numbers, clas-
sifications, and wage rates of all employees, along with
fringe benefits currently received and their cost.
The information requested by the Union on April 18
and May 27, 2005 is necessary for, and relevant to, the
Union’s performance of its duties as the exclusive collec-
tive-bargaining representative of the unit.
Since about April 18, 2005, the Respondent has failed
and refused to furnish the Union with the requested in-
formation concerning the Respondent’s alleged inability
to pay that was asserted as the reason for its refusal to
enter into contract negotiations.
Since about May 27, 2005, the Respondent has failed
and refused to furnish the Union with the requested in-
formation regarding employees’ names, addresses, phone
numbers, classifications, and compensation.
Between March and June 2005, the Respondent failed
to remit union dues collected pursuant to the collective-
bargaining agreement.
Since about March 25, 2005, the Respondent has failed
to pay its employees holiday pay for Good Friday 2005
pursuant to the collective-bargaining agreement.
Since about May 31, 2005, the Respondent has failed
to pay its employees holiday pay for Memorial Day 2005
pursuant to the collective-bargaining agreement.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining.
About June 2005, the Respondent closed its Marked
Tree, Arkansas facility without prior notice to the Union
and without affording the Union an opportunity to bar-
gain with the Respondent with respect to the effects of
the closing. This subject relates to wages, hours, and
other terms and conditions of employment of the unit,
and is a mandatory subject for the purposes of collective
bargaining.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
failed and refused to bargain collectively and in good
faith with the exclusive collective-bargaining representa-
tive of its employees, and has thereby engaged in unfair
labor practices affecting commerce 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 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 Marked Tree, Arkansas facility, we
shall order the Respondent to bargain with the Union, on
request, about the effects of its decision. As a result of
the Respondent’s unlawful conduct, however, the 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. Meaningful bargaining cannot be assured
until some measure of economic strength is restored to
the Union. A bargaining order alone, therefore, cannot
serve as an adequate 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 violation and to re-create in some practicable man-
ner 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 unit employees in a manner similar
to that required in Transmarine Navigation Corp., 170
NLRB 389 (1968), as clarified by Melody Toyota, 325
NLRB 846 (1998).1
Thus, the Respondent shall pay its 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 bar-
gains to agreement with the Union on those subjects per-
taining to the effects of the closing of its facility on the
unit 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

1 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
The complaint and motion do not specify whether the Respondent laid
off the unit employees. Thus, we do not know whether, or to what
extent, the refusal to bargain about effects had an impact on the unit
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., Fabricating Engineers, Inc., 341 NLRB
10, 11 fn. 1 (2004). Corbin, Ltd., 340 NLRB 1001, 1002 fn. 2 (2003).
DO GROUP SYSTEMS, INC. 3
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 the Respondent closed its facility to
the time they secured equivalent employment elsewhere,
or the date on which the Respondent shall have offered to
bargain in good faith, whichever occurs sooner. How-
ever, in no event shall this sum be less than the employ-
ees would have earned for a 2-week period at the rate of
their normal wages when last in the Respondent’s em-
ploy. Backpay shall be based on earnings which the unit
employees would normally have received during the ap-
plicable period, 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).
In addition, having found that the Respondent violated
Section 8(a)(5) and (1) since March 2005, by failing and
refusing to continue in effect all the terms and conditions
of the collective-bargaining agreement by failing to pay
holiday pay for Good Friday and Memorial Day 2005,
we shall order the Respondent to make whole its unit
employees for any loss of earnings and other benefits
they have suffered as a result. All payments to the unit
employees shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, supra.
Further, having found that the Respondent has failed
since March 2005 to remit to the Union the dues de-
ducted from the paychecks of unit employees, we shall
order the Respondent to forward such withheld dues to
the Union as required by the November 1, 2003 through
April 30, 2005 collective-bargaining agreement, with
interest, as prescribed in New Horizons for the Retarded,
supra.
In addition, having found that the Respondent has
failed to provide the Union with relevant and necessary
information requested on April 18 and May 27, 2005, we
shall order the Respondent to furnish the Union with the
requested information.
Finally, in view of the fact that the Respondent’s facil-
ity is currently 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
employed by the Respondent since March 2005, in order
to inform them of the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, DO Group Systems, Inc., Marked Tree, Ar-
kansas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
Southern Council of Industrial Workers and Ship, Mill
and Industrial Local 2892, affiliated with the United
Brotherhood of Carpenters and Joiners of America, as
the exclusive collective-bargaining representative of the
employees in the unit set forth below, about the effects of
its decision to close its Marked Tree, Arkansas facility:
All production and maintenance employees employed
at the Respondent’s Marked Tree, Arkansas plant, ex-
cluding all office clerical employees, professional em-
ployees, guards and supervisors as defined by the Act.
(b) Failing to continue in effect all the terms and con-
ditions of its collective-bargaining agreement with the
Union by failing to pay holiday pay for Good Friday
2005 and Memorial Day 2005.
(c) Failing to remit to the Union dues that have been
deducted from the employees’ paychecks pursuant to the
terms of the collective-bargaining agreement.
(d) Failing and refusing to provide the Union with in-
formation that is necessary for and relevant to the Un-
ion’s performance of its duties as the exclusive bargain-
ing representative of the unit employees.
(e) 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 unit employees of the Respondent’s decision
to close its Marked Tree, Arkansas facility, and reduce to
writing and sign any agreement reached as a result of
such bargaining.
(b) Pay the unit employees their normal wages for the
period set forth in the remedy section of this decision.
(c) Make unit employees whole for any loss of earn-
ings and other benefits by paying holiday pay for Good
Friday and Memorial Day 2005, pursuant to the collec-
tive-bargaining agreement, with interest.
(d) Remit to the Union dues that have been deducted
from employees’ earnings, with interest.
(e) Provide the Union with the information it requested
by letter about April 18, 2005 and orally on May 27,
2005.
(f) 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) 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”2 to all unit em-
ployees who were employed by the Respondent since
March 2005.
(h) 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 mail 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 and refuse to bargain in good faith
with Southern Council of Industrial Workers and Ship,
Mill and Industrial Local Union 2892, affiliated with the

2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
United Brotherhood of Carpenters and Joiners of Amer-
ica, as the exclusive collective-bargaining representative
of our employees in the following unit, about the effects
of our decision to close our Marked Tree, Arkansas facil-
ity. The unit is:
All production and maintenance employees employed
at our Marked Tree, Arkansas plant, excluding all of-
fice clerical employees, professional employees, guards
and supervisors as defined by the Act.
WE WILL NOT fail to continue in effect all the terms and
conditions of the collective-bargaining agreement by
failing to pay holiday pay for Good Friday 2005 and
Memorial Day 2005.
WE WILL NOT fail to remit to the Union dues that have
been deducted from the employees’ paychecks pursuant
to the terms of the collective-bargaining agreement.
WE WILL NOT fail and refuse to provide the Union with
information that is necessary for and relevant to the Un-
ion’s performance of its duties as the exclusive bargain-
ing representative of the unit employees.
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 concern-
ing the effects on unit employees of our decision to close
our Marked Tree, Arkansas facility, and reduce to writ-
ing 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 Marked Tree, Arkansas facility,
with interest.
WE WILL make the unit employees whole for any loss
of earnings and other benefits by paying the holiday pay
for Good Friday 2005 and Memorial Day 2005 that has
not been paid, with interest.
WE WILL remit to the Union the dues that have been
deducted from employees’ earnings, with interest.
WE WILL provide the Union with the information it re-
quested on April 18 and May 27, 2005.
DO GROUP SYSTEMS, INC.