M & R Dress, Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1977

232 N.L.R.B. 1136 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M & R Dress, Inc. and United Steelworkers of
America, AFL-CIO, Local 8226. Case 3-CA-
6930-2
October 13, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on February 24, 1977, by
United Steelworkers of America, AFL-CIO, Local
8226, herein called the Union, and duly served on M
& R Dress, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 3, issued
a complaint on April 22, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging 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 National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 17,
1974, following a Board election in Case 3-RC-5884,
the Union was duly certified as the exclusive
collective-bargaining representative of Hill Corpora-
tion's (hereafter referred to as Hill) employees in the
unit found appropriate.' Hill maintained a place of
business at 50 River Street, Warrensburg, New York
(hereafter referred to as the Warrensburg plant),
where it was engaged in the manufacture, sale, and
distribution of apparel and related products. On July
1, 1975, Riverview Mfg. Co., Inc. (hereafter referred
to as Riverview), acquired certain equipment previ-
ously operated by Hill, and Hill ceased to operate its
Warrensburg plant. From July 1, 1975, until Novem-
ber 5, 1976, Riverview operated the Warrensburg
plant, at the same location, as the successor to Hill,
and was engaged in substantially the same business
operations formerly engaged in by Hill using
substantially the same employees and supervisors
that were employed by Hill at the Warrensburg
plant. 2 On November 5, 1976, Riverview ceased to
operate the Warrensburg plant and Respondent
leased the plant and certain equipment previously
Official notice is taken of the record in the representation proceeding,
Case 3-RC 5884, as the term "record" is defined in Secs. 102.68 and
1
02
.6
9
(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Eleclrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co.. 167 NLRB 151 (1
9 67 ), enfd. 415 F.2d 26
(C.A. 5, 1969): Interype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967);
Folletr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968): Sec.
9(d) of the NLRA. as amended.
232 NLRB No. 150
used by Riverview. Since November 8, 1976, Respon-
dent has operated the Warrensburg plant, at the
same location, as the successor to Riverview, and has
been engaged in substantially the same business
operations formerly engaged in by Riverview, and
has employed substantially the same employees and
supervisors that were employed by Riverview at the
Warrensburg plant.
The complaint further alleges that, commencing on
or about November 8, 1976, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. A further allegation is
that, on or about November 8, 1976, Respondent
unilaterally and without notice to the Union or
affording the Union an opportunity to bargain on the
matter, reduced its contribution to its employees'
medical insurance program, and discontinued pay-
ments into the Union's pension plan. Since on or
about November 29, 1976, Respondent has refused
to furnish data relating to the transfer of certain
assets from Riverview to Respondent which was
requested by the Union. Additionally, the complaint
avers that, on February 23, 1977, Respondent
withdrew recognition of the Union as the exclusive
bargaining representative of its employees in the
appropriate unit described below.
Respondent did not file an answer to the com-
plaint.
On July 5, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 11, 1977, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent did not file a response to the
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
2The complaint states that Hill and the Union were parties to a
collective-bargaining agreement which was effective from March 1, 1974, to
March 1, 1977. From July I, 1975, until November 5, 1976, when it ceased
operations at the Warrensburg plant, Riverview assumed this collective-
bargaining obligation by which agreement Riverview recognized the Union
as the representative for the purpose of collective bargaining of Riverview's
employees in the appropriate unit described below.
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M & R DRESS, INC.
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
the complaint, if no answer is filed, or any
allegation in the complaint not specifically denied
or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be
admitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint duly served on Respondent states
that, unless an answer is filed by Respondent within
10 days of service of the complaint, "all of the
allegations in the Complaint shall be deemed to be
admitted to be true and may be so found by the
Board."
The Motion for Summary Judgment alleges that
the counsel for the General Counsel telephoned
Respondent on or about June 13, 1977, to inform it
that the time for filing an answer had expired. On
June 20, 1977, counsel for the General Counsel
notified Respondent by letter that no answer was
filed in this case and indicated that "your failure to
file an Answer by the close of business, Monday,
June 27, 1977 will oblige me to file a Motion for
Summary Judgment in [this] case." A copy of this
letter is attached to the Motion for Summary
Judgment as an exhibit and is uncontroverted by
Respondent.
As indicated, no response to the Notice To Show
Cause has been filed and it appears that Respondent
was duly informed of the charges alleged in the
complaint, and has not filed an answer.
No good cause to the contrary having been shown,
in accordance with the rule set forth above, the
allegations of the complaint are deemed to be
admitted and are found to be true. Accordingly, we
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
M & R Dress, Inc., is and has been, at all material
times herein, a New York corporation and has
maintained a place of business at 50 River Street,
Warrensburg, New York. In the course and conduct
of their business operations, Respondent, and its
predecessor Riverview, annually manufactured, sold,
and distributed at said Warrensburg, New York,
plant, products valued in excess of $50,000, and
products valued in excess of $50,000 were shipped
outside the State of New York.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, Local
8226, is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All production employees employed by the
Employer at its 50 River Street, Warrensburg,
New York, manufacturing facility, excluding all
office clerical employees, professional employees,
maintenance and janitorial employees, guards,
watchmen, and supervisors as defined in the Act.
2. The majority status of the Union
On or about January 4, 1974, a majority of the
employees of Hill in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 3, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining representa-
tive of the employees in said unit on or about
January 17, 1974.
From March 1, 1974, until July 1, 1975, when it
ceased operations at the Warrensburg plant, Hill and
the Union were parties to a collective-bargaining
agreement covering a unit of Hill's employees in the
above-described unit. The agreement was effective
from March 1, 1974, to March 1, 1977.
From July 1, 1975, until November 5, 1976, when it
ceased operations at the Warrensburg plant, River-
view assumed the collective-bargaining agreement
and Riverview and the Union were parties to said
agreement, by which Riverview recognized the
Union as the representative for the purpose of
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining of Riverview's employees in the
above-described unit.
Since November 8, 1976, Respondent has operated
the Warrensburg plant as the successor to Riverview
and the Union continues to be the exclusive
representative of its employees within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about November 8, 1976,
including specifically on December 20, 1976, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about November 8, 1976, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union and has unilaterally reduced its contribution
to its employees' medical insurance program, and
discontinued payments into the Union's pension
plan. Since November 29, 1976, and at all times since
such date, the Union has requested, and Respondent
has refused to furnish, data relating to the transfer of
certain assets from Riverview to Respondent.
Accordingly, we find that Respondent has, since
November 8, 1976, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICE UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. TllE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
3 In accordance with our decision in Florida Sleel Corporation. 231
NLRB 651 (1977). we shall apply the current 7-percent rate for periods pnor
to August 25. 1977. in which the "adjusted prime interest rate" as used by
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
We shall also order Respondent to reimburse its
employees for all payments that were unilaterally
withheld from the employees' medical insurance
program and the Union's pension plan, plus interest
at 7 percent per annum,3 and to furnish the Union
with the information it has requested since Novem-
ber 28, 1976, concerning the transfer of certain assets
from Riverview to Respondent.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. M & R Dress, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Steelworkers of America, AFL-CIO,
Local 8226, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production employees employed by the
Employer at its 50 River Street, Warrensburg, New
York, manufacturing facility, excluding all office
clerical employees, professional employees, mainte-
nance and janitorial employees, guards, watchmen,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since January 17, 1974, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about November 8, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
6. By unilaterally reducing its contribution to its
employees' medical insurance program, and discon-
tinuing payments into the Union's pension plan on
November 8, 1976, without notice to the Union or
affording the Union an opportunity to bargain on the
matter, Respondent has violated, and is continuing
to violate, Section 8(a)(5) and (1) of the Act.
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
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M & R DRESS, INC.
7. By failing and refusing on and after November
29, 1976, to provide the Union with information
relating to the transfer of certain assets from
Riverview to Respondent, Respondent has failed and
refused to bargain collectively with the sole and
exclusive bargaining representative of its current
employees in the aforedescribed unit and has
violated Section 8(a)(5) and (1) of the Act.
8. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, M
& R Dress, Inc., Warrensburg, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Steelworkers
of America, AFL-CIO, Local 8226, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All production employees employed by the
Employer at its 50 River Street, Warrensburg,
New York, manufacturing facility, excluding all
office clerical employees, professional employees,
maintenance and janitorial employees, guards,
watchmen, and supervisors as defined in the Act.
(b) Reducing its contribution to its employees'
medical insurance program, discontinuing payments
into the Union's pension plan, or otherwise altering
the terms and conditions of employment without
notifying the Union or affording the Union an
opportunity to bargain.
(c) Failing and refusing to furnish the Union with
information it requested on November 29, 1976,
concerning the transfer of certain assets from
Riverview to Respondent.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Reimburse its employees for any losses they
may have suffered by reason of its reducing its
contribution to the employees' medical insurance
program and discontinuing payments into the
Union's pension plan as set forth in the section of
this Decision entitled "The Remedy."
(c) Upon request, furnish to the Union the
information it requested on November 29, 1976,
concerning the transfer of certain assets from
Riverview to Respondent.
(d) Post at its place of business in Warrensburg,
New York, copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms
provided by the Regional Director for Region 3, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order ol the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with United
Steelworkers of America, AFL-CIO, Local 8226,
as the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT reduce our contribution to the
employees' medical insurance program, discontin-
ue payments into the Union's pension plan, or
otherwise alter the terms and conditions of
employment without notifying the Union and
affording the Union an opportunity to bargain.
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT fail and refuse to furnish the
Union with information they have requested
concerning the transfer of certain assets from
Rix erview to us.
WE WILL Nor in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All production employees employed by
the Employer at its 50 River Street, Warrens-
burg, New York, manufacturing facility,
excluding all office clerical employees, pro-
fessional employees, maintenance and jani-
torial employees, guards, watchmen, and
supervisors as defined in the Act.
WE WILL reimburse our employees for any
losses they may have suffered by reason of our
reducing our contribution to the employees'
medical insurance program and discontinuing
payments into the Union's pension plan, with
interest.
WE WILL, upon request, furnish to the Union
the information it requested on November 29,
1976, concerning the transfer of certain assets
from Riverview to Respondent.
M & R DRESS, INC.
1140