Hasbrouck Plastics, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2005

345 N.L.R.B. 85 (N.L.R.B. 2005)

345 NLRB No. 85
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hasbrouck Plastics, Inc. and IUE-CWA, Local 81333,
AFL–-CIO, CLC. Case 3–CA–25184
September 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The Acting General Counsel seeks a default judgment
in this case on the ground that the Respondent has failed
to file an answer to the consolidated complaint and com-
pliance specification. On December 13, 2004, the Union
filed a charge against Hasbrouck Plastics, Inc., the Re-
spondent, alleging that it had violated Section 8(a)(1) and
(5) of the Act. Thereafter, on February 23, 2005, the
Regional Director for Region 3 approved an informal
settlement agreement entered into by the Respondent and
the Union providing, among other things, for the pay-
ment of backpay to two employees named in the agree-
ment.
The Respondent failed to comply with the terms of the
settlement agreement. By letter dated March 21, 2005,
the compliance officer for Region 3 advised the Respon-
dent of its failure to comply with the terms of the settle-
ment agreement, and that its failure to comply by March
30, 2005, would result in the Regional Director revoking
the settlement agreement and issuing a complaint in the
matter. The Respondent failed to respond to the compli-
ance officer’s letter, and failed to comply with the terms
of the settlement agreement.
By letter dated May 9, 2005, the compliance officer in-
formed the Respondent of the amounts owed by the Re-
spondent pursuant to the settlement agreement, and again
advised the Respondent that its failure to comply with
the agreement would result in the Regional Director re-
voking the agreement and issuing a complaint. The Re-
spondent failed to respond to the compliance officer’s
May 9, 2005 letter, and failed to comply with the settle-
ment agreement.
Accordingly, on May 27, 2005, the Acting Regional
Director revoked the settlement agreement on the ground
that the Respondent had failed to remit the backpay re-
quired by the agreement, and issued a consolidated com-
plaint and compliance specification alleging that the Re-
spondent had violated Section 8(a)(1) and (5) of the Act.
The compliance specification alleged the amounts of
backpay due employees Gregory Hart and Bryon Neid-
balski. The consolidated complaint and compliance
specification provided that, pursuant to Sections 102.20,
102.21, and 102.56 of the Board’s Rules and Regula-
tions, the Respondent was required to file an answer to
the complaint and compliance specification by June 17,
2005. Although properly served with copies of the con-
solidated complaint and compliance specification, the
Respondent has not filed an answer.
On July 12, 2005, the Acting General Counsel filed a
Motion for Default Judgment with the Board. On July
14, 2005, 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.
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
of service of the complaint, unless good cause is shown.
Similarly, Section 102.56 of the Board’s Rules and
Regulations provides that the allegations in a compliance
specification will be taken as true if an answer is not
filed within 21 days from service of the compliance
specification. In addition, the consolidated complaint
and compliance specification affirmatively stated that
unless an answer was filed by June 17, 2005, all the alle-
gations in the consolidated complaint and compliance
specification could be found to be true. Further, the un-
disputed allegations in the Acting General Counsel’s
motion disclose that the Region, by letter dated June 23,
2005, notified the Respondent that unless an answer was
received by June 30, 2005, a motion for default judgment
would be filed. The Respondent did not respond to this
letter nor file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we grant the Acting 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, a corporation
with an office and place of business in Lakeview, New
York, has been engaged in the business of manufacturing
custom fiberglass inserts for plastic vessels. During the
calendar year preceding issuance of the complaint, the
Respondent, in conducting its business operations de-
scribed above, sold and shipped goods and materials val-
ued in excess of $50,000 directly to points located out-
side 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 IUE–CWA, Local 81333, AFL–
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
CIO, CLC (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, Gian Marc Casolini has held the
position of the Respondent’s general manager, and has
been a supervisor of the Respondent within the meaning
of Section 2(11) of the Act and an agent of the Respon-
dent within the meaning of Section 2(13) of the Act.
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 employees of the Respondent described in article I,
paragraph 2, of the collective-bargaining agreement be-
tween the Respondent and the Union effective by its
terms from February 1, 2004 to January 31, 2006.
At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
the unit, and has been recognized as the representative by
the Respondent. This recognition has been embodied in
successive collective-bargaining agreements, the most
recent of which is effective from February 1, 2004 to
January 31, 2006. At all materials times, based on Sec-
tion 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the Respondent’s
employees in the unit.
Since on or about June 13, 2004, through on or about
November 30, 2004, the Respondent failed to remit con-
tractually-required payments and elective deferrals to the
401(k) plan (a/k/a Hasbrouck Plastics, Inc. Retirement
Plan) on behalf of unit employees.
Since on or about November 30, 2004, the Respondent
has failed to pay to unit employees contractually-
required accrued vacation pay and contractually-required
holiday pay for Thanksgiving Day 2004.
Since on or about December 1, 2004, the Respondent
has failed to pay the health insurance premiums for the
month of December 2004 for unit employees who
worked for the Respondent in November 2004.
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 purpose of collective bar-
gaining.
CONCLUSION OF LAW
By failing to remit contractually-required payments
and elective deferrals to the 401(k) plan on behalf of unit
employees, and by failing to pay accrued vacation pay,
holiday pay for Thanksgiving Day 2004, and the health
insurance premiums for the month of December 2004 for
unit employees who worked for the Respondent in No-
vember 2004, the Respondent has failed and refused to
bargain collectively and in good faith with the exclusive
collective-bargaining representative of its employees, in
violation of Section 8(a)(5) and (1) of the Act. The Re-
spondent’s unfair labor practices affect commerce within
the meaning of 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 violated Section 8(a)(5) and
(1) of the Act by by failing and refusing to remit contrac-
tually-required payments and elective deferrals to its
401(k) plan on behalf of its employees, to pay contractu-
ally-required accrued vacation pay and holiday pay for
Thanksgiving Day 2004, and to pay health insurance
premiums for the month of December 2004 for unit em-
ployees who worked for the Respondent in November
2004, we shall order the Respondent to make employees
Gregory Hart and Bryon Neidbalski whole by paying
them the amounts set forth in the compliance specifica-
tion, plus interest accrued to the date of payment as set
forth in New Horizons for the Retarded, 283 NLRB 1173
(1987), and minus tax withholdings required by Federal
and State laws.
ORDER
The National Labor Relations Board orders that the
Respondent, Hasbrouck Plastics, Inc., Lakeview, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
IUE–CWA, Local 81333, AFL–CIO, CLC, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit by failing to pay,
pursuant to the Respondent’s 2004–2006 collective-
bargaining agreement with the Union, payments and
elective deferrals to the 401(k) plan on behalf of unit
employees; accrued vacation pay and holiday pay; and
health insurance premiums. The unit is:
All employees of the Respondent described in article I,
paragraph 2, of the collective-bargaining agreement be-
tween the Respondent and the Union effective by its
terms from February 1, 2004 to January 31, 2006.
(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.
HASBROUCK PLASTICS, INC. 3
(a) Make whole Gregory Hart and Bryon Neidbalski
for the failure to pay contractually-required vacation pay,
holiday pay, and health insurance premiums by paying
them the backpay amounts following their names, plus
interest accrued to the date of payment, as set forth in
New Horizons for the Retarded, 283 NLRB 1173 (1987),
and minus tax withholdings required by Federal and
State laws:
Gregory Hart $1,604.92
Bryon Neidbalski $ 679.28
(b) Make whole Gregory Hart and Bryon Neidbalski
for the failure to remit payments and elective deferrals to
the contractual 401(k) plan on their behalf by paying
them the amounts opposite their names, plus any yield
that the employees would have earned had the contribu-
tions been made.1
Gregory Hart $ 710.60
Bryon Neidbalski $1,055.022
(c) Within 14 days after service by the Region, post at
its facility in Lakeview, New York, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
3, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since June 13,
2004.
(d) 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-

1 The applicable yield on the 401(k) deferrals is presently unknown
to the Acting General Counsel, but is within the knowledge of the Re-
spondent.
2 In sum, the total amount owed by the Respondent is $4,049.82,
plus interest and yield.
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.”
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. September 30, 2005
Robert J. Battista, Chairman
Wilma B. Liebman, Member
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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
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 recognize and bargain
with IUE–CWA, Local 81333, AFL–CIO, CLC, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit by failing to
pay, pursuant to our 2004–2006 collective-bargaining
agreement with the Union, payments and elective defer-
rals to the 401(k) plan on behalf of unit employees; ac-
crued vacation pay and holiday pay; and health insurance
premiums. The unit is:
All of our employees described in article I, paragraph 2,
of the collective-bargaining agreement between us and
the Union effective by its terms from February 1, 2004
to January 31, 2006.
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL make whole Gregory Hart and Bryon Neid-
balski for our failure to pay contractually-required vaca-
tion pay, holiday pay, and health insurance premiums by
paying them the backpay amounts following their names,
plus interest accrued to the date of payment, and minus
tax withholdings required by Federal and state laws:
Gregory Hart $1,604.92
Bryon Neidbalski $ 679.28
WE WILL make whole Gregory Hart and Bryon Neid-
balski for our failure to remit payments and elective de-
ferrals to the contractual 401(k) plan on their behalf by
paying them the amounts oppositve their names, plus any
yield that they would have earned had the contributions
been made.
Gregory Hart $ 710.60
Bryon Neidbalski $1,055.02
HASBROUCK PLASTICS, INC.