Modern Packing Corp.,

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 121 (N.L.R.B. 2004)

343 NLRB No. 121
1
Modern Packaging Corp. and Local 6-1031, Paper,
Allied Industrial, Chemical and Energy Interna-
tional Union, AFL-CIO. Case 7-CA-47663
December 16, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge and amended
charges filed by the Union on July 12 and 26, 2004, and
September 16, 2004, respectively, the General Counsel
issued the complaint on October 6, 2004 against Modern
Packaging Corp., the Respondent, alleging that it has
violated Section 8(a)(1) and (5) of the Act. The Respon-
dent failed to file an answer.
On November 16, 2004, the General Counsel filed a
Motion for Default Judgment with the Board. On No-
vember 19, 2004, 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 stated
that unless an answer was filed by October 20, 2004, all
the allegations in the complaint could be considered ad-
mitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated October 21, 2004, notified the Respondent that
unless an answer was received by November 3, 2004, 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, we grant the 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 its principal office and place of business at 504
Huber Dr., Monroe, Michigan, has been engaged in the
production and wholesale sales of cardboard folding car-
tons.
During the year 2003, a representative period, the Re-
spondent, in conducting its operations described above,
sold and shipped from its Monroe facility goods valued
in excess of $50,000 directly to points outside the State
of Michigan.
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 Local 6-1031, Paper, Allied In-
dustrial, Chemical and Energy International Union, AFL-
CIO (the Union) is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their names and have
been supervisors of the Respondent within the meaning
of Section 2(11) of the Act and agents of the Respondent
within the meaning of Section 2(13) of the Act:
Walt Houston Owner
Bruce Weaver General Manager
Cory Newman Co-General Manager
Dan Danner Chief Financial Officer
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 full-time and regular part-time production
and maintenance employees, truck drivers, leaders,
janitors and shipping and receiving employees at the
Respondent’s Monroe facility, but excluding all
other employees such as office clerical, technical,
professional, guards and supervisors as defined in
the Act.
Since at least 1998 and at all material times, the Union
has been the designated exclusive collective-bargaining
representative of the unit and since then the Union has
been recognized as the representative by the Respondent.
This recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of which
was effective from December 16, 2002 to May 23, 2004.
At all times since at least 1998, by virtue of Section
9(a) of the Act, the Union has been the exclusive repre-
sentative of the unit for purposes of collective bargaining
with respect to wages, hours of employment, and other
terms and conditions of employment.
Since April 1, 2004, the Respondent has failed to con-
tinue in effect the health insurance benefits of the collec-
tive-bargaining agreement described above, while con-
tinuing to deduct premiums from unit employees’ pay-
checks.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The term and condition of employment described
above is a mandatory subject for the purposes of collec-
tive bargaining.
The Respondent engaged in the conduct described
above without the Union’s consent.
About June 8, 2004, the Union and the Respondent
reached complete agreement on terms and conditions of
employment of the unit to be incorporated in a successor
collective-bargaining agreement, which was to remain in
effect from June 1, 2004 through May 31, 2006.
Since about June 8, 2004, the Union has requested that
the Respondent execute a written contract containing the
agreement described above.
Since about June 8, 2004, the Respondent, through its
agents Bruce Weaver, Cory Newman, and Dan Danner,
has failed and refused to execute the agreement described
above.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees, in violation of Section 8(a)(5)
and (1) of the Act. The Respondent’s unfair labor prac-
tices 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 has violated Section 8(a)(5)
and (1) by failing since April 1, 2004 to continue in ef-
fect the health insurance benefits of the collective-
bargaining agreement, while continuing to deduct premi-
ums from unit employees’ paychecks, we shall order the
Respondent to restore the employees’ health insurance
benefits and reimburse unit employees for any expenses
ensuing from the Respondent’s failure to continue the
health insurance benefits, 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 Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in-
terest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Further, having found that the Respondent has unlaw-
fully failed and refused, since about June 8, 2004, to exe-
cute a written contract containing the agreement with the
Union reached on that date, we shall order the Respon-
dent to execute the agreement and give retroactive effect
to its terms. We shall also order the Respondent to make
whole the unit employees for any losses attributable to its
failure to execute the agreement, as set forth in Ogle
Protection Service, supra, with interest as prescribed in
New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Modern Packaging Corp., Monroe, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Local 6-1031, Paper, Allied Industrial,
Chemical and Energy International Union, AFL-CIO, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit by failing to
continue in effect the health insurance benefits of the
December 16, 2002—May 23, 2004 collective-
bargaining agreement. The unit is:
All full-time and regular part-time production
and maintenance employees, truck drivers, leaders,
janitors and shipping and receiving employees at the
Respondent’s Monroe facility, but excluding all
other employees such as office clerical, technical,
professional, guards and supervisors as defined in
the Act.
(b) Refusing to execute a written contract containing
the agreement reached with the Union on about June 8,
2004, on the terms and conditions of employment of the
unit.
(c) 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 unit employees’ health insurance bene-
fits and reimburse the employees for any loss of benefits
or expenses ensuing from the Respondent’s failure to
continue the benefits since April 1, 2004, with interest, as
set forth in the remedy section of this decision.
(b) Execute and implement a written contract contain-
ing the agreement reached with the Union on about June
8, 2004, containing terms and conditions of employment,
give retroactive effect to the agreement, and make the
unit employees whole for any loss of earnings and other
benefits they have suffered as a result of the Respon-
dent’s failure to execute the agreement, with interest, in
the manner set forth in the remedy section of this deci-
sion.
(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-
MODERN PACKAGING CORP. 3
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.
(d) Within 14 days after service by the Region, post at
its facility in Monroe, Michigan, copies of the attached
notice marked "Appendix."1 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 April 1, 2004.
(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
violated 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.

1 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.”
WE WILL NOT fail and refuse to bargain collectively
and in good faith with Local 6-1031, Paper, Allied Indus-
trial, Chemical and Energy International Union, AFL-
CIO, as the collective-bargaining representative of the
employees in the following appropriate unit by failing to
continue in effect the health insurance benefits of the
December 16, 2002—May 23, 2004 collective-
bargaining agreement. The unit is:
All full-time and regular part-time production
and maintenance employees, truck drivers, leaders,
janitors and shipping and receiving employees at our
Monroe facility, but excluding all other employees
such as office clerical, technical, professional,
guards and supervisors as defined in the Act.
WE WILL NOT refuse to execute a written contract con-
taining the agreement reached with the Union on about
June 8, 2004, on the terms and conditions of employment
of the unit.
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 unit employees’ health insurance
benefits and reimburse the employees for any loss of
benefits or expenses ensuing from our failure to continue
the benefits since April 1, 2004, with interest.
WE WILL execute and implement a written contract
containing the agreement reached with the Union on
about June 8, 2004, containing terms and conditions of
employment, give retroactive effect to the agreement,
and make the unit employees whole for any loss of earn-
ings and other benefits they have suffered as a result of
our failure to execute the agreement, with interest.
MODERN PACKAGING CORP.