National Fabco Mfg.

National Labor Relations Board - Board Decisions

Mar 17, 2008

352 N.L.R.B. 37 (N.L.R.B. 2008)

352 NLRB No. 37
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.
National Fabco Manufacturing, Inc. and Sheet Metal
Workers’ International Association, AFL–CIO,
Local Union No. 202. Case 14–CA–29107
March 17, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
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 an
amended charge filed by the Union on October 9 and
November 29, 2007, respectively, the General Counsel
issued the complaint on November 29, 2007, against Na-
tional Fabco Manufacturing, Inc., the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of the Act.
The Respondent failed to file an answer.
On January 23, 2008, the General Counsel filed a Mo-
tion for Default Judgment with the Board. Thereafter, on
January 30, 2008, 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.
Ruling on Motion for Default Judgment1
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 states
that the answer must be received by the Regional Office
on or before December 13, 2007, and that if no answer
was filed, the Board may find, pursuant to a motion for
default judgment, that the allegations in the complaint
are true. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated December 17, 2007, and through a telephone con-
versation that same day, notified the Respondent that
unless an answer was received by close of business on
December 24, 2007, a motion for default judgment
would be filed.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
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 Missouri cor-
poration with an office and place of business in St. Louis,
Missouri, has been engaged in the manufacture of
kitchen equipment.
During the 12-month period ending September 30,
2007, the Respondent, in conducting its business opera-
tions described above, purchased and received at its St.
Louis, Missouri facility goods valued in excess of
$50,000 directly from points outside the State of Mis-
souri, and during that same period, purchased and re-
ceived at its St. Louis, Missouri facility goods valued in
excess of $50,000 from other enterprises located within
the State of Missouri, each of which other enterprises had
received these goods directly from points outside the
State of Missouri.
During 12-month period ending September 30, 2007,
the Respondent, in conducting its business operations
described above, sold and shipped from its St. Louis,
Missouri facility goods valued in excess of $50,000 di-
rectly to points outside the State of Missouri, and during
that same period, sold and shipped from its St. Louis,
Missouri facility goods valued in excess of $50,000 to
enterprises within the State of Missouri, each of which
enterprises is directly engaged in interstate commerce.
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 Sheet Metal Workers’ Interna-
tional Association, AFL–CIO, Local Union No. 202, the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective 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.
Ed Page - - President and Co-Owner
Kevin Stubbs - Manager and Co-Owner
The following employees of Respondent, the unit, con-
stitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
All sheet metal workers including pipe machine opera-
tors, 10 & 12 foot shears operators, press brake opera-
tors, welders, assemblers, machine helpers and material
handlers, metal polishers, grinders, layout assemblers,
maintenance mechanics, refrigeration man and jour-
neymen sheet metal layout mechanics employed by
Respondent, excluding office clerical and professional
employees, guards, and supervisors as defined in the
Act.
Since on or about August 30, 2005, the Union has been
the designated exclusive collective-bargaining represen-
tative of the unit, and since then the Union has been rec-
ognized as the representative by Respondent. This rec-
ognition is embodied by the Respondent’s adoption of its
predecessor’s collective-bargaining agreement which
was effective from October 1, 2003 to September 30,
2007 (the 2003–2007 agreement).
At all material times since about August 30, 2005,
based on Section 9(a) of the Act, the Union has been the
exclusive collective-bargaining representative of the unit.
Since about June 1, 2007, the Respondent has failed to
continue in effect all the terms and conditions of the
2003–2007 agreement by failing to make health and
wealth and pension fund contributions on behalf of unit
employees.
Since about August 1, 2007, the Respondent has failed
to remit to the Union the dues required by Article 2 of
the 2003–2007 agreement that the Respondent has with-
held from the paychecks of unit employees.
Since about September 9, 2007, the Respondent has
failed to continue in effect all the terms and conditions of
the 2003–2007 agreement by failing and refusing to pay
employees wages and accrued vacation pay.
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. The Respondent engaged in the conduct de-
scribed above without prior notice to the Union and
without affording the Union an opportunity to bargain
with the Respondent with respect to this conduct.
About September 14, 2007, the Respondent ceased op-
erations and laid off all employees in the unit. This sub-
ject relates to wages, hours, and other terms and condi-
tions of employment of the unit and is a mandatory sub-
ject for the purpose of collective bargaining.
Since about September 14, 2007, the Respondent has
failed and refused to bargain with the Union as the exclu-
sive collective-bargaining representative of the unit over
the effects on the unit of its decision to cease operations
and the resulting layoffs.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of its employees, and has
thereby engaged 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 Act.2
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, to remedy
the Respondent’s unlawful failure and refusal to bargain
with the Union about the effects of the Respondent’s
decision to cease operations at its St. Louis, Missouri
facility, we shall order the Respondent to bargain with
the Union, on request, about the effects of its decision.
As a result of the Respondent’s unlawful conduct, how-
ever, the unit employees have been denied an opportu-
nity to bargain through their collective-bargaining repre-
sentative at a time when the Respondent might still have
been in need of their services and a measure of balanced
bargaining power existed. Meaningful bargaining cannot
be assured until some measure of economic strength is
restored to the Union. A bargaining order alone, there-
fore, cannot serve as an adequate remedy for the unfair
labor practices committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violation and to re-create in some practicable man-
ner a situation in which the parties’ bargaining position is
not entirely devoid of economic consequences for the
Respondent. We shall do so by ordering the Respondent
to pay backpay to the unit employees in a manner similar
to that required in Transmarine Navigation Corp., 170
NLRB 389 (1968), as clarified by Melody Toyota, 325
NLRB 846 (1998).3
Thus, the Respondent shall pay its unit employees
backpay at the rate of their normal wages when last in the

2 In light of our finding that the Respondent unlawfully failed to bar-
gain with the Union about the effects of its decision to close its facility,
we find it unnecessary to pass on the complaint’s further allegation that
about September 20 and 21, 2007, after the Respondent ceased opera-
tions and laid off all employees in the unit, the Respondent additionally
violated Sec. 8(a)(5) and (1) by failing to respond to telephone mes-
sages left by the Union on the voicemail of Respondent’s manager and
co-owner Kevin Stubbs.
3 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
NATIONAL FABCO MFG. 3
Respondent’s employ from 5 days after the date of this
Decision and Order until occurrence of the earliest of the
following conditions: (1) the date the Respondent bar-
gains to agreement with the Union on those subjects per-
taining to the effects of its decision to cease operations of
its facility on the unit employees; (2) a bona fide impasse
in bargaining; (3) the Union’s failure to request bargain-
ing within 5 business days after receipt of this Decision
and Order, or to commence negotiations within 5 busi-
ness days after receipt of the Respondent’s notice of its
desire to bargain with the Union; or (4) the Union’s sub-
sequent failure to bargain in good faith.
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date on which the Respondent ceased operations of
its St. Louis, Missouri facility to the time they secured
equivalent employment elsewhere, or the date on which
the Respondent shall have offered to bargain in good
faith, whichever occurs sooner. However, in no event
shall this sum be less than the employees would have
earned for a 2-week period at the rate of their normal
wages when last in the Respondent’s employ. Backpay
shall be based on earnings which the unit employees
would normally have received during the applicable pe-
riod, less any net interim earnings, and shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).4
Further, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing to continue in effect all
of the terms and conditions of the 2003–2007 agreement
by failing to make health and welfare and pension fund
contributions on behalf of the unit employees since June
1, 2007, we shall order the Respondent to make all such
delinquent health and welfare and pension fund contribu-
tions that have not been made since June 1, 2007, includ-
ing any additional amounts due the funds in accordance
with Merryweather Optical Co., 240 NLRB 1213, 1216
fn. 7 (1979).5 We shall also order the Respondent to
reimburse unit employees for any expenses ensuing from
its failure to make the required contributions, as set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2

4 In the complaint, the General Counsel “seeks compound interest
computed on a quarterly basis for any backpay awarded.” Having duly
considered the matter, we are not prepared at this time to deviate from
our current practice of assessing simple interest. See, e.g., Rogers
Corp., 344 NLRB 504 (2005).
5 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent's delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
(1980), enfd. 661 F.2d 940 (9th Cir. 1981), such amounts
to be computed in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Hori-
zons for the Retarded, supra.
In addition, having found that the Respondent violated
Section 8(a)(5) and (1) by failing since August 1, 2007,
to remit to the Union the dues required by Article 2 of
the 2003–2007 agreement that the Respondent withheld
from the paychecks of employees, we shall order the
Respondent to forward such withheld dues to the Union
as required by the 2003–2007 agreement, with interest,
as prescribed in New Horizons for the Retarded, supra.
Also, having found that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing to continue in effect all of
the terms and conditions of the 2003–2007 agreement by
failing to pay unit employees wages and accrued vaca-
tion pay since September 9, 2007, we shall order the Re-
spondent to make the unit employees whole for any loss
of earnings and other benefits attributable to its unlawful
conduct. Backpay shall be computed in accordance with
Ogle Protection Service, supra, with interest as pre-
scribed in New Horizons for the Retarded, supra.
Finally, in view of the fact that the Respondent has
ceased operations at its St. Louis, Missouri facility, we
shall order the Respondent to mail a copy of the attached
notice to the Union and to the last known addresses of
the unit employees who were employed by the Respon-
dent since June 1, 2007, in order to inform them of the
outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, National Fabco Manufacturing, Inc., St.
Louis, Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Sheet Metal Workers’ International As-
sociation, AFL–CIO, Local Union No. 202, as the exclu-
sive collective-bargaining representative of the employ-
ees in the unit set forth below, over the effects of the
Respondent’s decision to cease operations at its St.
Louis, Missouri facility:
All sheet metal workers including pipe machine opera-
tors, 10 & 12 foot shears operators, press brake opera-
tors, welders, assemblers, machine helpers and material
handlers, metal polishers, grinders, layout assemblers,
maintenance mechanics, refrigeration man and jour-
neymen sheet metal layout mechanics employed by
Respondent, excluding office clerical and professional
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
employees, guards, and supervisors as defined in the
Act.
(b) Failing to continue in effect all the terms and con-
ditions of its 2003–2007 agreement with the Union by
failing to make health and welfare and pension fund con-
tributions on behalf of the employees.
(c) Failing to remit to the Union the dues required by
Article 2 of the 2003–2007 agreement that the Respon-
dent withheld from the paychecks of employees since
August 1, 2007.
(d) Failing to continue in effect all the terms and con-
ditions of its 2003–2007 agreement with the Union by
failing to pay employees wages and accrued vacation
pay.
(e) 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, bargain collectively and in good faith
with the Union concerning the effects of the Respon-
dent’s decision to cease operations at its St. Louis, Mis-
souri facility, and reduce to writing and sign any agree-
ment reached as a result of such bargaining.
(b) Pay the unit employees their normal wages for the
period set forth in the remedy section of this decision.
(c) Make all delinquent health and welfare and pension
fund contributions on behalf of employees, with interest,
that have not been made since June 1, 2007, in the man-
ner set forth in the remedy section of this decision.
(d) Make whole the unit employees for any expenses
ensuing from the Respondent’s failure to make the con-
tractually-required health and welfare and pension fund
contributions, with interest, as set forth in the remedy
section of this decision.
(e) Remit to the Union all dues required by Article 2 of
the 2003–2007 agreement that have not been remitted
since August 1, 2007, that the Respondent withheld from
the paychecks of employees in the unit, with interest.
(f) Make whole the unit employees for any loss of
earnings and other benefits resulting from the Respon-
dent’s failure to pay employees wages and accrued vaca-
tion pay since September 9, 2007, with interest, as set
forth in the remedy section of this decision.
(g) 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.
(h) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix”6 to the Union
and to all unit employees who were employed by the
Respondent at any time since June 1, 2007.
(i) 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 the Respondent has taken to comply.
Dated, Washington, D.C. March 17, 2008
Wilma B. Liebman, Member
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
MAILED 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 mail 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 bargain collectively
and in good faith with Sheet Metal Workers’ Interna-
tional Association, AFL–CIO, Local Union No. 202, as
the exclusive collective-bargaining representative of the
employees in the unit below, over the effects of our deci-

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Mailed By Order of the Na-
tional Labor Relations Board" shall read "Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
NATIONAL FABCO MFG. 5
sion to cease operations at our St. Louis, Missouri facil-
ity and layoff the employees in the unit. The unit is:
All sheet metal workers including pipe machine opera-
tors, 10 & 12 foot shears operators, press brake opera-
tors, welders, assemblers, machine helpers and material
handlers, metal polishers, grinders, layout assemblers,
maintenance mechanics, refrigeration man and jour-
neymen sheet metal layout mechanics employed by us,
excluding office clerical and professional employees,
guards, and supervisors as defined in the Act.
WE WILL NOT fail to continue in effect all the terms
and conditions of the October 1, 2003 to September 30,
2007 collective-bargaining agreement with the Union,
including failing to make health and welfare and pension
fund contributions on behalf of the employees.
WE WILL NOT fail to remit to the Union the dues re-
quired by Article 2 of the collective-bargaining agree-
ment that were withheld from the paychecks of employ-
ees, since August 1, 2007.
WE WILL NOT fail to continue in effect all the terms
and conditions of the October 1, 2003 to September 30,
2007 collective-bargaining agreement including failing
and refusing to pay employees wages and accrued vaca-
tion pay.
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, bargain with the Union concern-
ing the effects of our decision to cease operations at our
St. Louis, Missouri facility and the resulting layoffs of
the employees in the unit, and reduce to writing and sign
any agreement reached as a result of such bargaining.
WE WILL pay the unit employees their normal wages
for the period set forth in the Decision and Order of the
National Labor Relations Board, with interest.
WE WILL make all delinquent health and welfare and
pension fund contributions on behalf of employees, with
interest, that have not been made since June 1, 2007.
WE WILL make whole the unit employees for any ex-
penses ensuing from our failure to make the contractu-
ally-required health and welfare and pension fund contri-
butions, with interest.
WE WILL remit to the Union all dues required by Arti-
cle 2 of the collective-bargaining agreement that have not
been remitted since August 1, 2007, and that were with-
held from the paychecks of employees in the unit, with
interest.
WE WILL make whole the unit employees for any loss
of earnings and other benefits resulting from our failure
to pay employees wages and accrued vacation pay since
September 9, 2007, with interest.
NATIONAL FABCO MANUFACTURING, INC.