Goer Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 732 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 732
Goer Manufacturing Company, Inc. and Carpenters
East Coast Industrial Council, Local 2221. Case
11–CA–20013
April 30, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On a charge filed by the Union on June 17, 2003, and
subsequently amended on September 22, 2003, the Gen-
eral Counsel of the National Labor Relations Board is-
sued a complaint on October 31, 2003, against Goer
Manufacturing Company, Inc. (the Respondent). The
complaint alleges that the Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act by
failing to continue in effect all terms and conditions of
the parties’ collective-bargaining agreement by refusing
to pay unit employees vacation and perfect attendance
pay earned prior to February 11, 2003. The Respondent
filed an answer to the complaint, an amended answer,
and a second amended answer. In the second amended
answer, the Respondent admitted the factual allegations
of the complaint but denied that it violated Section
8(a)(5) and (1) of the Act. The Respondent also asserted
the following affirmative defenses: first, the Board’s pro-
ceeding is stayed by the automatic stay provisions of
Section 362 of the Bankruptcy Code;1 second, the entry
of an award or judgment by the Board against the Re-
spondent would violate Section 362 of the Bankruptcy
Code; third, the Respondent’s actions with respect to the
payment of vacation and perfect attendance pay were
taken in accordance with the Bankruptcy Code’s priority
scheme; and fourth, the Board should defer to the final
determination or adjudication of the claim filed by the
Union with the Bankruptcy Court.
On January 14, 2004, the General Counsel filed a Mo-
tion for Summary Judgment. Thereafter, on January 16,
2004, the Board issued an order transferring the proceed-
ing to the Board and Notice to Show Cause. The Re-
spondent did not file a response to the Board’s Notice to
Show Cause.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on the Motion for Summary Judgment
The Respondent’s second amended answer admits the
factual allegations in the complaint, including that it uni-
laterally discontinued vacation and perfect attendance
pay, but asserts the affirmative defense that the Board’s
proceeding is stayed by the stay provisions of Section
362 of the Bankruptcy Code. It is well settled that the

1 11 U.S.C. § 362.
institution of bankruptcy proceedings does not deprive
the Board of jurisdiction or authority to entertain and
process an unfair labor practice case to its final disposi-
tion. Board proceedings fall within the exception to the
automatic stay provision of the Bankruptcy Code for
governmental units. See, e.g., R. T. Jones Lumber Co.,
313 NLRB 726, 727–728 (1994).
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in the
manufacture of store fixtures in North Charleston, South
Carolina. During the 12 months preceding the issuance
of the complaint, the Respondent sold and shipped from
its North Charleston, South Carolina facility products
valued in excess of $50,000 directly to points outside the
State of South Carolina. We find that the Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. We further find that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all times material, Gary Diamond occupied the po-
sition of plant manager, and has been, and is now, an
agent of Respondent, acting on its behalf, and is a super-
visor within the meaning of Section 2(11) of the Act.
The following employees of the Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:

All production and maintenance employees employed
at the Respondent’s North Charleston, South Carolina
plant; excluding office clerical employees, professional
employees, technical employees, over-the-road truck
drivers, managerial employees, guards and supervisors
as defined in the Act.

At all times since October 25, 1974, and continuing to
date, the Union has been the representative of the unit
employees for the purpose of collective bargaining of the
unit employees, and by virtue of Section 9(a) of the Act,
has been, and is now, the exclusive representative of the
unit employees for the purpose of collective bargaining
2 We find it unnecessary to address our dissenting colleague’s con-
tentions because they were not raised by any party to this proceeding
and are therefore not procedurally before the Board. See Nick & Bob
Partners, 340 NLRB No. 142, slip op. at 4 fn. 5 (2003), citing, e.g.,
Avne Systems, Inc., 331 NLRB 1352, 1354 (2000).
341 NLRB No. 105
GOER MFG. CO. 733
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
On or about June 12, 2002, the Respondent and the
Union entered into a collective-bargaining agreement
with respect to terms and conditions of employment of
the employees in the unit described above, which agree-
ment was to remain in effect until April 30, 2003.
On or about February 11, 2003, the Respondent unilat-
erally changed agreed-upon terms and conditions of em-
ployment of unit employees by failing to continue in
effect all the terms and conditions of the agreement de-
scribed above by refusing to pay unit employees vacation
and perfect attendance pay earned prior to February 11,
2003.
The terms and conditions described above are manda-
tory subjects for the purposes of collective bargaining,
and the Respondent engaged in the conduct described
above without the Union’s consent.
CONCLUSION OF LAW
By failing to continue in effect the terms and condi-
tions of the Agreement by refusing to pay unit employees
vacation and perfect attendance pay, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) 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 vio-
lated Section 8(a)(5) and (1) by failing to make contrac-
tually required vacation and perfect attendance payments
earned prior to February 11, 2003, we shall order the
Respondent to make its unit employees whole for any
losses attributable to its unlawful conduct, with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Goer Manufacturing Company, Inc., North
Charleston, South Carolina, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Carpenters East Coast In-
dustrial Council, Local 2221, the exclusive collective-
bargaining representative of the Respondent’s employees
in an appropriate unit, by unilaterally failing to continue
in effect terms and conditions of the parties’ collective-
bargaining agreement by refusing to pay unit employees
vacation and perfect attendance pay earned prior to Feb-
ruary 11, 2003.
(b) 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, meet and bargain collectively and in
good faith with the Union as the exclusive bargaining
representative of the unit. The unit is:

All production and maintenance employees employed
at the Respondent’s North Charleston, South Carolina
plant; excluding office clerical employees, professional
employees, technical employees, over-the-road truck
drivers, managerial employees, guards and supervisors
as defined in the Act.

(a) Make unit employees whole for any losses attribut-
able to the unlawful conduct in the manner set forth in
the remedy section of the decision.
(b) 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-
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.
(c) Within 14 days after service by the Region, post at
its facility in North Charleston, South Carolina, copies of
the attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, 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 Re-
spondent 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 February 11, 2003.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 734
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER SCHAUMBER, dissenting.
Unlike my colleagues, I would not grant the General
Counsel’s Motion for Summary Judgment. Not every
contract breach rises to the level of an unfair labor prac-
tice. Here, the complaint involves essentially a mere
collection action against a bankrupt employer that is fi-
nancially unable to pay moneys due under the terms of a
collective-bargaining agreement. I question whether
such facts establish an unfair labor practice as a matter of
law. Moreover, given the availability of alternative fora
in which the Union can pursue contractual remedies, I do
not believe the prosecution and adjudication of such
claims is a wise or appropriate use of the Board’s re-
sources. Accordingly, I would dismiss the General
Counsel’s complaint.1

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

1 Other Board Members have voiced similar positions. See, e.g.,
Member Cowen’s dissent in Scapino Steel Erectors, Inc., 337 NLRB
992, 996–997 (2002); Chairman Van De Water’s concurrence in Capi-
tol City Lumber Co., 263 NLRB 784, 787 (1982).
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit or protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain with Carpenters East
Coast Industrial Council, Local 2221, the exclusive col-
lective-bargaining representative of our employees in the
appropriate unit, by unilaterally failing to continue in
effect terms and conditions of the collective-bargaining
agreement by refusing to pay unit employees vacation
and perfect attendance pay. The appropriate unit of our
employees is the following:

All production and maintenance employees employed
at our North Charleston, South Carolina plant; exclud-
ing office clerical employees, professional employees,
technical employees, over-the-road truck drivers,
managerial employees, guards and supervisors as de-
fined in the Act.

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, meet and bargain collectively and
in good faith with the Union as the exclusive bargaining
representative of the unit.
WE WILL make you whole for any losses attributable to
our unlawful conduct, plus interest.

GOER MANUFACTURING COMPANY, INC.