Electro-Flyte, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2000

331 N.L.R.B. 633 (N.L.R.B. 2000)

ELECTRO-FLYTE, INC. 633
Electro-Flyte, Inc. and United Steelworkers of Amer-
ica, AFL–CIO, CLC. Cases 3–CA–21918 and 3–
CA–22205
June 30, 2000
DECISION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR SUMMARY
JUDGMENT AND REMANDING
BY MEMBERS FOX, LIEBMAN, AND BRAME
Upon charges filed by the Union in Cases 3–CA–
21918 and 3–CA–22205 on May 7 and October 27,
1999, respectively, the General Counsel of the National
Labor Relations Board issued an amended consolidated
complaint on December 21, 1999, against the Respon-
dent, alleging that it has violated Section 8(a)(5) and (1)
of the National Labor Relations Act. The General Coun-
sel issued an initial complaint in Case 3–CA–21918 on
September 29, 1999, based solely on the May 7, 1999
charge. Although properly served copies of the charges,
initial complaint, and amended consolidated complaint,
the Respondent filed only a letter dated October 12,
1999, purporting to answer the initial complaint.
On January 20, 2000, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On January
24, 2000, the Board issued an order transferring the pro-
ceeding 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.
Procedural History
The initial complaint alleges that the Respondent has
violated Section 8(a)(5) and (1) of the Act by delaying in
providing certain information and failing and refusing to
provide certain information requested by the Union in its
March 18 and April 1, 19991 letters to the Respondent. In
response to the complaint, the Respondent, acting pro se,
sent a letter to the Regional Director on October 12, en-
closing copies of correspondence with the Union which
indicated that the Respondent had supplied much of the
requested information but was hampered in its efforts to
comply fully because some of its records were temporar-
ily in storage. The October 12 letter stated that the Re-
spondent had tried its best to provide the information
requested by the Union but that the Respondent had been
without its files for almost 3 months due to moving its
business to a new building and that it had been impossi-
ble to comply with the Union’s requests at that time. The
letter further stated that, when the Respondent finally
relocated, it began providing information as it came out
of storage. The letter additionally stated that the only
requested information that the Union then lacked was
“1998 401K breakouts per employee” and that the Re-
spondent was enclosing that information with the letter.

1 All dates herein are in 1999, unless otherwise indicated.
The December 21 amended consolidated complaint re-
vised the allegations contained in the initial complaint to
allege only that the Respondent unduly delayed in pro-
viding the Union the information requested on March 18
and April 1. The amended consolidated complaint addi-
tionally alleged that the Respondent violated Section
8(a)(5) and (1) by failing and refusing to provide infor-
mation requested by the Union on October 18 and 21, by
failing to remit contractually required benefit fund con-
tributions after May 25, by notifying employees unilater-
ally that they were required to pay their own health in-
surance premiums, by dealing directly with employees
on October 25 by suggesting that they appoint a repre-
sentative to collect health insurance premiums and sub-
mit them directly to the Respondent, and by closing its
facility, ceasing business, and terminating all employees
on October 29 without notice to the Union or an oppor-
tunity to bargain regarding the effects of this conduct.
The General Counsel contends in his motion that, un-
der Section 102.20 of the Board’s Rules and Regulations,
the Respondent’s October 12 letter does not constitute an
acceptable answer to the complaint allegations in Case
3–CA–21918. The General Counsel argues that, even
under the more lenient standards applicable to pro se
respondents, the letter fails to address any of the legal or
factual allegations of the initial complaint and fails to
admit or deny any of the initial complaint allegations.
Additionally, the General Counsel notes that the Respon-
dent has failed to file an answer to the amended consoli-
dated complaint, has given no reason for this failure, and
never requested an extension of time for filing an answer.
The General Counsel accordingly submits that no suffi-
cient answer has been filed, that in accordance with Sec-
tions 102.24 and 102.50 of the Board’s Rules all allega-
tions in the amended consolidated complaint should be
deemed to be true and should be so found by the Board,
and that summary judgment as to all the complaint alle-
gations should be granted.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules pro-
vide 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. In
addition, the complaint and the amended consolidated
complaint affirmatively state that unless an answer is
filed within 14 days of service, all the allegations in the
respective complaint will be considered admitted. Fur-
ther, the undisputed allegations in the General Counsel’s
motion disclose that the Region, by letter dated January
5, 2000, notified the Respondent that unless an answer
was received by January 6, 2000, a Motion for Summary
Judgment would be filed.
331 NLRB No. 82
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634
As noted above, the General Counsel argues that the
Respondent’s October 12 letter does not constitute an
acceptable answer to the complaint allegations in Case
3–CA–21918. We do not agree. Given the Respondent’s
pro se status, we find that the October 12 letter is suffi-
ciently responsive to those complaint paragraphs alleging
that the Respondent unduly delayed providing the infor-
mation requested in the Union’s March 18 and April 1
letters.
The Board “typically has shown some leniency toward
a pro se litigant’s efforts to comply with our procedural
rules.” A.P.S. Productions, 326 NLRB 1296 (1998). We
find the October 12 letter adequately denies or sets forth
a defense to the complaint allegations that it unduly de-
layed in providing the Union with the information re-
quested March 18 and April 1. As the Board has noted:
“[I]t is well established that the duty to furnish requested
information cannot be defined in terms of a per se rule.
What is required is a reasonable good-faith effort to re-
spond to the request as promptly as circumstances al-
low.” (Emphasis added.) Good Life Beverage Co., 312
NLRB 1060, 1062 fn. 9 (1993). In our view, the Respon-
dent’s letter effectively asserts that it made a reasonable
good-faith effort to respond to the Union’s March 18 and
April 1 information requests as promptly as circum-
stances allowed. Accordingly, we shall deny the General
Counsel’s motion as to amended consolidated complaint
paragraph 9(e) and paragraph 14 to the extent that it per-
tains to paragraph 9(e).2
The Respondent’s October 12 letter has not, however,
placed into dispute the allegations contained in para-
graphs 9(a), (b), or (d) (as the latter pertains to pars. 9(a)
and (b)) of the amended consolidated complaint. Para-
graph 9(a) alleges that since on or about March 18, 1999,
the Union, by letter, has requested that the Respondent
furnish the Union with the information set forth in ap-
pendix A attached to the amended consolidated com-
plaint. Paragraph 9(d) alleges that since on or about April
1, 1999, the Union, by letter, has requested that the Re-
spondent furnish the Union with the information set forth
in appendix B attached to the amended consolidated
complaint. Paragraph 9(d) alleges in pertinent part that
the information requested by the Union, as described
above in paragraphs 9(a) and (b), is necessary for, and
relevant to the Union’s performance of its duties as the
exclusive collective-bargaining representative of the pro-
duction employees unit and the laboratory employees
unit. The Respondent has also not placed into dispute
complaint paragraphs 1 through 8 of the amended con-
solidated complaint,3 which set forth the filing and ser-
vice of the underlying unfair labor practice charges, and

2 Pars. 9(e) and 14 of the amended consolidated complaint are
equivalent to pars. 9(d) and 10, respectively, of the initial complaint.
3 Pars. 1–8 of the amended consolidated complaint are equivalent to
pars. 1–8, respectively, of the initial complaint.
allege that the Respondent and the Union are respectively
an employer engaged in commerce and a labor organiza-
tion under the Act, that John Balazovic is the Respon-
dent’s chief operating officer and a supervisor and agent
of the Respondent, that the Union is the recognized col-
lective-bargaining representative of the production and
maintenance employees bargaining unit and the labora-
tory employees bargaining unit, that these units are ap-
propriate bargaining units, that the collective-bargaining
agreement for the production and maintenance employee
unit was effective from April 15, 1997, to April 14, 2000,
and that the collective-bargaining agreement for the labo-
ratory employees unit was effective from June 1, 1998,
to May 31, 1999, and was extended through October 31,
1999. The Respondent’s October 12 letter does not in
any manner place into dispute these allegations. As this
letter does not admit, deny, explain, or otherwise meet
the substance of these complaint allegations, and the Re-
spondent failed to file an answer or respond in any man-
ner to the amended consolidated complaint, we shall
grant the summary judgment as to those paragraphs.
As the Respondent did not file an answer or respond in
any manner to the amended consolidated complaint, it
has not placed in dispute the alleged violations set forth
in that complaint other than the allegation that it unduly
delayed providing the information requested in the Un-
ion’s March 18 and April 1 letters. Accordingly, in the
absence of good cause being shown for the failure to file
a timely answer to the amended consolidated complaint,
we grant summary judgment as to all the alleged viola-
tions set forth in that complaint other than the allegation
that the Respondent unduly delayed providing the infor-
mation requested in the Union’s March 18 and April 1
letters.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and place of business in Syracuse, New
York, has been engaged in providing engineering ser-
vices. During the 12 months preceding the issuance of
the complaint, the Respondent, in conducting its business
operations, provided services valued in excess of
$50,000 in States other than the State of New York. 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, United Steelworkers
Of America, AFL–CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
4 “The Board will not grant summary judgment based on a respon-
dent’s failure to answer an amended complaint’s allegations that are
substantively unchanged from allegations contained in a prior version
of the complaint to which the respondent filed a proper denial.” Media
One, Inc., 313 NLRB 876 (1994).
ELECTRO-FLYTE, INC. 635
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, John Balazovic held the position
of the Respondent’s chief operating officer and has been
a supervisor within the meaning of Section 2(11) of the
Act and an agent of the Respondent within the meaning
of Section 2(13) of the Act. The following employees of
the Respondent (the production and maintenance em-
ployees unit) constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:

All production and maintenance employees, excluding
all office clerical employees, laboratory employees,
guards, professional employees and supervisors as de-
fined in the Act.

The following employees of the Respondent (the laboratory
employees unit) constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9(b)
of the Act:

All laboratory employees, technical employees, and all
office clerical employees, but excluding guards, pro-
duction and maintenance employees, supervisors, all
inside and outside sales people, and any new position
not currently defined by the collective-bargaining
agreement.

At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
the production and maintenance employees unit and has
been recognized as the representative by the Respondent.
This recognition has been embodied in a collective-
bargaining agreement effective from April 15, 1997, to
April 14, 2000 (the production and maintenance employ-
ees agreement).
At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
the laboratory employees unit and has been recognized as
the representative by the Respondent. This recognition
has been embodied in a collective-bargaining agreement
(the laboratory employees agreement), which was effec-
tive from June 1, 1998, to May 31, 1999, and was ex-
tended by mutual agreement of the parties on a month-to-
month basis through October 31, 1999.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the production and maintenance em-
ployees unit and the exclusive collective-bargaining rep-
resentative of the laboratory employees unit.
Since on or about March 18 and April 1, the Union, by
letter, has requested that the Respondent furnish the Un-
ion with certain information.5 The information requested

5 The Union’s March 18 letter identified the requested information
as follows:

1) State the company’s current owners, individual and corpo-
rate, and the top 10 shareholders.
2) What are the Company’s plans on relocation after March
31, 1999? Where will the Company be located? Provide explana-
tion and details.
3) You indicated in our meeting yesterday that the Company
may put its equipment, machines, and other tangibles on tractor-
trailers as of April 1, 1999, on a temporary basis if the Company
is unable to secure a new lease and location by April 1. Where are
the tractor-trailers located? Who owns the tractor trailers? When
will this take place? When will you know whether this will take
place?
4) How long will the bargaining unit members be out of work
if this happens?
5) State the status of the company’s obligations under the col-
lective-bargaining agreement regarding payments for health and
medical insurance, life insurance, and 401(k) plan? Please state
the dates and payment amounts for each benefit and time period
for which the payment applied between July 1998 and the present.
This request is continuing, in that it requires you to provide the in-
formation through the date you respond to this request.
6) You stated to me in our meeting yesterday that the Com-
pany would be unable to pay both the payroll and insurance bene-
fits on Friday, March 19. Please advise whether the Company will
make these payments, and, if so, when?
7) Please provide all correspondence between Guardian Life
Insurance Company and the Company between July 1998 and the
present relating to payments of the premiums on the health insur-
ance coverage to employees and Guardian’s obligations, cancella-
tion, and/or potential discontinuance of paying employee claims.
If any of these documents relate to an individual employee and
would disclose confidential medical information about the em-
ployees, you may redact the document appropriately to protect
employee medical confidentiality.
8) Please provide all correspondence between the Company
and any other health insurer relating to payments of the premiums
on any type of health insurance coverage to employees and that
company’s obligations, cancellation, and/or potential discontinu-
ance of paying employee claims. If any of these documents relate
to an individual employee and would disclose confidential medi-
cal information about the employee, you may redact the document
appropriately to protect employee medical confidentiality.
9) Please provide all correspondence between Equitable and
the Company between July 1998 and the present relating to pay-
ments of the Company’s 401(k) plan including the Company’s
obligations and the employees’ contributions from withholdings.
If any of these documents relates to an individual employee and
would disclose confidential financial information about the em-
ployee, you may redact the document appropriately to protect
employee financial confidentiality.
10) In our meeting yesterday, you state that you wanted the
flexibility to lay off five (5) individuals outside of the seniority
provisions of the collective-bargaining agreement in order to
make the Company more financially attractive to a bank who
would guarantee a potential lease. State the names of the indi-
viduals you wish to lay off and the reasons why you want to lay
off that particular individual.
11) State the name of the bank that would be involved in the
lease transaction and provide written documentation of the bank’s
position concerning the financial situation of the Company.
The Union’s April 1 letter requested participant and beneficiary infor-
mation concerning the Respondent’s health and dental insurance plan,
disability plan, life insurance plan, accidental death plan, and retirement
(401(k)) plan. Specifically, regarding these plans, the Union requested
the “latest updated Summary Plan Descriptions, plan descriptions,
annual reports, any terminal reports, trust agreement, contract, or other
instruments under which the above-referenced plans are established or
operated.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636
by the Union is necessary for, and relevant to, the Un-
ion’s performance of its duties as the exclusive collec-
tive-bargaining representative of the production and
maintenance employees unit and the laboratory employ-
ees unit. Since on or about October 18 and October 21,
the Union, by letter, has requested that the Respondent
furnish the Union with certain additional information.6
The information requested by the Union is necessary for,
and relevant to, the Union’s performance of its duties as
the exclusive collective-bargaining representative of the
production and maintenance employees unit and the
laboratory employees unit. Since on or about October 19
and continuing to date, the Respondent has failed and
refused to furnish the Union with the information re-
quested in its October 18 and October 21 letters.
The production and maintenance employees agreement
and the laboratory employees agreement establish vari-
ous employee benefit funds and require that the Respon-
dent make contributions to the funds on behalf of em-
ployees in the production and maintenance employees
unit and the laboratory employees unit. Since on or about
May 25 and at all material times thereafter, the Respon-
dent, without the Union’s consent, has failed to continue
in effect all the terms and conditions of the production
and maintenance employees agreement and the labora-
tory employees agreement by failing to remit contractu-
ally required contributions to the employee benefit funds,
including the pension funds, on behalf of employees in
the production and maintenance employees unit and the

6 The Union’s October 18 letter requested the following information:
(1) The names and addresses of the employees who will be
terminated and the dates of their termination.
(2) Updated information, and prospectively through the dates
of termination, regarding the amounts of 401(k) contributions ow-
ing the employees’ accounts including those amounts deducted
from the employees’ compensation and the company’s contribu-
tions. This request includes copies of payroll statements for each
employee, employee election notices regarding the percentage of
deferral to the 401(k) accounts, and checks and correspondence
with Marine Midland (trustee) and Equitable.
(3) Updated information regarding the company’s payments
to the employees’ health insurers. This request includes copies of
checks and correspondence with the insurer through the dates of
termination.
(4) Information regarding the procedure for COBRA benefits
for the employees and the company’s efforts at meeting this legal
obligation.
(5) Updated information on the status of the company’s pay-
ment of withholdings to the appropriate governmental entities.
(6) Additional information on what is the “capital” side of the
business and the “spare parts and service” business as referenced
in the October 15, 1999 notice.
(7) Identify the “organizations” with which the company is
discussing selling the spare parts and service business and the
dates of any such sale.
(8) Whether the company will pay severance benefits to any
employees pursuant to the collective-bargaining agreement(s)
and, if so, the names of the employees and the amount of sever-
ance paid.
The October 21 letter did not request any additional information but
renewed the Union’s requests set forth in its October 18 letter.
laboratory employees unit. The employee benefit funds
and the requirement that the Respondent make contribu-
tions to such funds are mandatory subjects for the pur-
pose of collective bargaining.
On or about October 25, the Respondent unilaterally
notified employees in the production and maintenance
employees unit and the laboratory employees unit that
they were required to pay their own health insurance
premiums, although the production and maintenance
employees agreement and the laboratory employees
agreement provides for payments by the Respondent.
The Respondent so notified the employees without prior
notice to the Union and without affording the Union an
opportunity to bargain with the Respondent with respect
to this conduct and the effects of this conduct.
Since on or about October 25, the Respondent, by John
Balazovic, at the Respondent’s facility, bypassed the
Union and dealt directly with its employees in the pro-
duction and maintenance employees unit and the labora-
tory employees unit by suggesting that they appoint a
representative to collect health insurance premiums and
submit the payments directly to the Respondent, after the
Respondent refused to pay such premiums itself. The
subject of health insurance premiums and the means of
their payment relates to wages, hours, and other terms
and conditions of employment of the production and
maintenance employees unit and the laboratory employ-
ees unit and is a mandatory subject for purposes of col-
lective bargaining.
Since on or about October 29, the Respondent closed
its facility, ceased doing business and terminated all of
its employees in the production and maintenance em-
ployees unit and the laboratory employees unit. The Re-
spondent took these actions without prior notice to the
Union and without affording the Union an opportunity to
bargain with the Respondent with respect to the effects
of this conduct, despite the fact that, on October 18, the
Union requested by letter that the Respondent bargain
with the Union about this subject.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of its employees and has
thereby engaged in unfair labor practices affecting com-
merce 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, having
found that the Respondent has violated Section 8(a)(5)
and (1) of the Act by failing to bargain with the Union
over the effects of its decision to close its Syracuse, New
ELECTRO-FLYTE, INC. 637
York facility, we shall order the Respondent, on request,
to bargain with the Union concerning the effects of its
decision to cease operations. As a result of the Respon-
dent’s unlawful failure to bargain in good faith with the
Union, the terminated employees have been denied an
opportunity to bargain through their collective-
bargaining representative. Meaningful bargaining cannot
be assured until some measure of economic strength is
restored to the Union. A bargaining order alone, there-
fore, cannot serve as an adequate remedy for the unfair
labor practices committed.
Accordingly, we deem it necessary, in order to effec-
tuate the purposes of the Act, to require the Respondent
to bargain with the Union concerning the effects of clos-
ing its facility on its employees and shall accompany our
order with a limited backpay requirement designed both
to make whole the employees for losses suffered as a
result of the violations and to re-create in some practica-
ble 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 Re-
spondent to pay backpay to the terminated employees in
a manner similar to that required in Transmarine Naviga-
tion Corp., 170 NLRB 389 (1968).
Thus, the Respondent shall pay its terminated employ-
ees 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
bargains to agreement with the Union on those subjects
pertaining to the effects of the closing of its facility on its
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 com-
mence negotiations within 5 business days after receipt
of the Respondent’s notice of its desire to bargain with
the Union;7 (4) the Union’s subsequent failure to bargain
in good faith; but in no event shall the sum paid to these
employees exceed the amount they would have earned as
wages from the date on which the Respondent terminated
its operations, to the time they secured equivalent em-
ployment elsewhere, or the date on which the Respon-
dent shall have offered to bargain in good faith, which-
ever occurs sooner; provided, however, that in no event
shall this sum be less than the employees would have
earned for a 2-week period at the rate of their normal
wages when last in the Respondent’s employ. Backpay
shall be based on earnings which the terminated employ-
ees would normally have received during the applicable
period, less any net interim earnings, and shall be com-
puted 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).

7 Melody Toyota, 325 NLRB 846 (1998).
In addition, having found that the Respondent has
failed to pay the appropriate employee benefit funds for
employees in the bargaining units, including, but not
limited to, pension funds as set forth in the production
and maintenance employees collective-bargaining agree-
ment and the laboratory employees collective-bargaining
agreement, we shall order the Respondent to make whole
the unit employees by making all contractually required
contributions to the benefit funds that it failed to make
since about May 25, including any additional amounts
applicable to such delinquent payments as determined
pursuant to Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). In addition, the Respondent shall re-
imburse unit employees for any expenses ensuing from
its failure to make the required contributions, as set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981), such amounts
to be computed in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Hori-
zons for the Retarded, supra.8
We also shall order the Respondent to supply the Un-
ion with the information requested in its October 18 and
October 21 letters to the Respondent.
The General Counsel’s amended consolidated com-
plaint seeks, as part of the remedy, an order requiring the
Respondent to preserve and, on request, provide at the
office designated by the Board or its agents, copies of
specified records necessary to analyze the amount of
backpay due under the terms of the Board’s Order, in-
cluding electronic copies, if such records are stored in
electronic form. Our Order makes clear that electronic
documents, if they exist, must be supplied. See Bryant &
Stratton Business Institute, 327 NLRB 1135 fn. 3 (1999).
With respect to the General Counsel’s proposed require-
ment that the Respondent submit copies of the necessary
backpay records at the office designated by the Board or
its agents, we find that the question whether this change
should be made in the Board’s standard order language
should be addressed after full opportunity for briefing by
affected parties and that this is therefore not an appropri-
ate case in which to make that determination. We there-
fore decline to include that requirement in the order. See
Kloepfers Floor Covering, Inc., 330 NLRB 811 fn. 1
(2000).
In view of the fact that the Respondent’s facility is cur-
rently closed, 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 in-
form them of the outcome of this proceeding.
8 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respon-
dent shall reimburse the employee, but the amount of such reimburse-
ment shall constitute a setoff to the amount that the Respondent other-
wise owes the fund.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
ORDER
The National Labor Relations Board orders that the
Respondent, Electro-Flyte, Inc., Syracuse, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with United Steel-
workers of America, AFL–CIO, CLC as the exclusive
collective-bargaining representative of the employees in
the following appropriate units:

All production and maintenance employees, excluding
all office clerical employees, laboratory employees,
guards, professional employees and supervisors as de-
fined in the Act.

All laboratory employees, technical employees, and all
office clerical employees, but excluding guards, pro-
duction and maintenance employees, supervisors, all
inside and outside sales people, and any new position
not currently defined by the collective-bargaining
agreement.

(b) Failing to furnish the Union with information that it
requests that is relevant and necessary to its role as the
exclusive collective-bargaining representative of the unit
employees.
(c) Failing to make contributions to benefit funds on
behalf of the unit employees as required by the Respon-
dent’s 1997 collective-bargaining agreement with the
Union covering the production and maintenance employ-
ees unit and the Respondent’s 1998 collective-bargaining
agreement with the Union covering the laboratory em-
ployees unit.
(d) Notifying employees, without giving prior notice to
the Union and affording the Union an opportunity to bar-
gain, that employees are required to pay their own health
insurance premiums.
(e) Bypassing the Union and dealing directly with em-
ployees by suggesting that they appoint a representative
to collect health insurance premiums and submit the
payments directly to the Respondent.
(f) Failing to give the Union prior notice of its decision
to close its facility, cease doing business, and terminate
its employees and an opportunity to bargain about the
effects of that decision on unit employees.
(g) 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) Furnish to the Union in a timely manner the infor-
mation requested by the Union on October 18 and 21,
1999.
(b) Make all delinquent contributions to the Union
benefit funds required by the collective-bargaining
agreements and reimburse the funds for its failure to do
so since about May 25, 1999, as set forth in the remedy
section of this decision.
(c) Make whole the unit employees, by reimbursing
them for any expenses ensuing from its failure to make
the required contributions to the Union benefit funds, as
set forth in the remedy section of this decision.
(d) On request, bargain with the Union concerning the
effects on the unit employees of the closing of the Re-
spondent’s Syracuse, New York facility, its cessation of
business, and its termination of its employees, and reduce
to writing and execute any agreement reached as a result
of such bargaining.
(e) Pay its former unit employees backpay at the rate
of their normal wages when last in the Respondent’s em-
ploy from 5 days after the date of this Decision and Or-
der until occurrence of the earliest of the following con-
ditions: (1) the date the Respondent bargains to agree-
ment with the Union on those subjects pertaining to the
effects of the closing of its facility on its 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 receipt of the Respondent’s
notice of its desire to bargain with the Union; (4) the
Union’s subsequent failure to bargain in good faith; but
in no event shall the sum paid to these employees exceed
the amount they would have earned as wages from Octo-
ber 29, 1999, the date on which the Respondent termi-
nated its operations, to the time they secured equivalent
employment elsewhere, or the date on which the Re-
spondent shall have offered to bargain in good faith,
whichever occurs sooner; provided, however, that in no
event shall this sum be less than the employees would
have earned for a 2-week period at the rate of their nor-
mal wages when last in the Respondent’s employ, with
interest, as set forth in the remedy portion of this deci-
sion.
(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords 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, signed
and dated copies of the attached notice marked “Appen-
dix”9 to the Union and to all current and former unit em-
ployees employed by the Respondent at any time since
May 25, 1999.

9 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ELECTRO-FLYTE, INC. 639
(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.
IT IS FURTHER ORDERED that this proceeding is
remanded to the Regional Director for Region 3 for the
purpose of arranging a hearing before an administrative
law judge limited to the allegations set forth in amended
consolidated complaint paragraph 9(e) and paragraph 14
to the extent that it pertains to paragraph 9(e). The ad-
ministrative law judge shall prepare and serve on the
parties a decision containing findings of fact, conclusions
of law, and recommendations based on all the record
evidence. Following service of the judge’s decision on
the parties, the provisions of Section 102.46 of the
Board’s Rules shall be applicable.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to bargain with United Steel-
workers of America, AFL–CIO, CLC as the exclusive
collective-bargaining representative of our employees in
the following appropriate units:

All production and maintenance employees, excluding
all office clerical employees, laboratory employees,
guards, professional employees and supervisors as de-
fined in the Act.

All laboratory employees, technical employees, and all
office clerical employees, but excluding guards, pro-
duction and maintenance employees, supervisors, all
inside and outside sales people, and any new position
not currently defined by the collective-bargaining
agreement.

WE WILL NOT fail to furnish the Union with informa-
tion that it requests that is relevant and necessary to its
role as the exclusive collective-bargaining representative
of our bargaining-unit employees.
WE WILL NOT fail to make contributions to benefit
funds on behalf of our unit employees as required by our
1997 collective-bargaining agreement with the Union
covering the production and maintenance employees
bargaining unit and our 1998 collective-bargaining
agreement with the Union covering the laboratory em-
ployees bargaining unit.
WE WILL NOT notify you, without giving prior notice
to the Union and affording the Union an opportunity to
bargain, that employees are required to pay their own
health insurance premiums.
WE WILL NOT bypass the Union and deal directly
with you by suggesting that our employees appoint a
representative to collect health insurance premiums and
submit the payments directly to the Respondent.
WE WILL NOT fail to give the Union prior notice of
any decision to close our facility, cease doing business,
and terminate employees and an opportunity to bargain
about the effects of that decision on 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 furnish to the Union in a timely manner the
information requested by the Union on October 18 and
21, 1999.
WE WILL make all delinquent contributions to the Un-
ion benefit funds required by our collective-bargaining
agreements and reimburse the funds for our failure to do
so since about May 25, 1999.
WE WILL make you whole, by reimbursing you for
any expenses ensuing from our failure to make the re-
quired contributions to the Union benefit funds.
WE WILL, on request, bargain with the Union con-
cerning the effects on the unit employees of the termina-
tion of our operations at our Syracuse, New York facil-
ity, our cessation of business, and our termination of em-
ployees, and reduce to writing and execute any agree-
ment reached as a result of such bargaining.
WE WILL pay our former employees in the units de-
scribed above who were employed at the time of our
closing their normal wages for the period of time set
forth in the decision underlying this notice to employees,
with interest.

ELECTRO-FLYTE, INC.