James B. Day & Co.

National Labor Relations Board - Board Decisions

Sep 23, 2003

340 N.L.R.B. 286 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286
James B. Day & Co. and Sign, Display, Pictorial Art-
ists & Allied Workers, Local 830, AFL–CIO.
Case 13–CA–40366
September 23, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
The General Counsel seeks a default judgment1 in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and first
amended charge filed by the Union on July 25 and Au-
gust 29, 2002, respectively, the General Counsel issued
the complaint on August 29, 2002, against James B. Day
& Co., the Respondent, alleging that it has violated Sec-
tion 8(a)(1) and (5) of the Act. The Respondent failed to
file an answer.
On December 24, 2002, the General Counsel filed a
Motion for Summary Judgment with the Board. On De-
cember 31, 2002, 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 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 affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated November 18, 2002, notified the Respondent that
unless an answer were received by November 29, 2002, 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,2 we grant the General Coun-
sel’s Motion for Default Judgment.

1 The General Counsel’s motion requests summary judgment on the
ground that the Respondent has failed to file an answer to the com-
plaint. Accordingly, we construe the General Counsel’s motion as a
Motion for Default Judgment.
2 By letter dated November 20, 2002, the Respondent confirmed an
earlier telephone conversation with counsel for the General Counsel
that it had filed for Chapter 7 bankruptcy protection. It is well estab-
lished that the 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 disposition. See, e.g., Cardinal Services,
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Illinois cor-
poration, with an office and place of business in Carpen-
tersville, Illinois, has been engaged in the manufacturing
of paint related materials.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business op-
erations described above, purchased and received at its
Carpentersville, Illinois facility goods valued in excess of
$50,000 from other enterprises located within the State of
Illinois, each of which other enterprises has received these
goods directly from points outside the State of Illinois.
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 is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Jack Stritt, president/owner, has
been a supervisor of the Respondent within the meaning
of Section 2(11) of the Act and agent of the Respondent
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 collective
bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed
by the Employer out of its facilities currently located at
1 Day Lane, Carpentersville, Illinois; excluding office
clerical employees and guards, professional employees
and supervisors as defined in the Act.
At all material times, the Union has been the desig-
nated collective-bargaining representative of the unit
described above and has been recognized as such repre-
sentative by the Respondent. Such recognition has been
embodied in successive collective-bargaining agree-
ments, the most recent of which is effective by its terms
from October 31, 2000, through October 31, 2003
(agreement).
At all material times, the Union by virtue of Section
9(a) of the Act, has been, and is, the exclusive bargaining
representative of the unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of

295 NLRB 933 fn. 2 (1989), and cases cited there. Board proceedings
fall within the exception to the automatic stay provisions for proceed-
ings by a governmental unit to enforce its police or regulatory powers.
See id., and cases cited therein; NLRB v. 15th Avenue Iron Works, Inc.,
964 F.2d 1336, 1337 (2d Cir. 1992). Accord: Aherns Aircraft, Inc. v.
NLRB, 703 F.2d 23 (1st Cir. 1983).
340 NLRB No. 34
JAMES B. DAY & CO. 287
employment, and other terms and conditions of employ-
ment.
The agreement described above covers terms and con-
ditions of employment of the unit, and was to remain in
effect until October 31, 2003, and year to year thereafter
unless either party served the other party with at least 60
days’ notice of its desire to terminate on October 31,
2003.
Since about August 1, 2002, the Respondent has failed
to continue in effect all the terms and conditions of the
agreement by terminating the health insurance, life insur-
ance, dental insurance, and COBRA policies for all bar-
gaining unit and laid-off employees as required by article
XV of the agreement. The Respondent engaged in this
conduct without the Union’s consent, notwithstanding
that the foregoing terms and conditions of employment
relate to wages, hours, and other terms and conditions of
employment of the unit and are mandatory subjects for
the purposes of collective bargaining.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain with the
exclusive collective-bargaining representative of the em-
ployees, and has thereby engaged in unfair labor prac-
tices 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, we shall
order the Respondent to restore the health insurance, life
insurance, dental insurance, and COBRA policies for
bargaining unit and laid-off employees as required by
article XV of the agreement. In addition, the Respondent
shall reimburse the unit and laid-off employees for any
expenses ensuing from its failure to continue the contrac-
tually required health insurance, life insurance, dental
insurance, and COBRA policies, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be
computed in the manner set forth in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, James B. Day & Co., Carpentersville, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to continue in effect all the terms and con-
ditions of the October 31, 2000–October 31, 2003 collec-
tive-bargaining agreement by terminating the health in-
surance, life insurance, dental insurance, and COBRA
policies for bargaining unit and laid-off employees as
required by article XV of the agreement. The appropri-
ate unit is:
All production and maintenance employees employed
by the Employer out of its facilities currently located at
1 Day Lane, Carpentersville, Illinois; excluding office
clerical employees and guards, professional employees
and supervisors as defined in the Act.
(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) Restore the health insurance, life insurance, dental
insurance, and COBRA policies for all bargaining unit
and laid-off employees as required by article XV of the
agreement.
(b) Reimburse the unit and laid-off employees for any
expenses ensuing from its failure to continue the contrac-
tually required health insurance, life insurance, dental
insurance, and COBRA policies since August 1, 2002, as
set forth in the remedy section of this Decision.
(c) 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 elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in Carpentersville, Illinois, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
13, 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

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 288
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 August 1,
2002.
(e) 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
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 or refuse to continue in effect all
the terms and conditions of our October 31, 2000–
October 31, 2003 collective-bargaining agreement with
Sign, Display, Pictorial Artists & Allied Workers, Local
830, AFL–CIO, by terminating the health insurance, life
insurance, dental insurance, and COBRA policies for
bargaining unit and laid-off employees as required by
article XV of the agreement. The appropriate unit is:
All production and maintenance employees employed
by us out of our facilities currently located at 1 Day
Lane, Carpentersville, Illinois; excluding office clerical
employees and guards, professional employees and su-
pervisors as defined 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 restore the health insurance, life insurance,
dental insurance, and COBRA policies for all bargaining
unit and laid-off employees as required by article XV of
the agreement.
WE WILL reimburse the unit and laid-off employees
for any expenses ensuing from our failure to continue the
contractually required health insurance, life insurance,
dental insurance, and COBRA policies since August 1,
2002, with interest.

JAMES B. DAY & CO.