Nick & Bob Partners

National Labor Relations Board - Board Decisions

Nov 28, 2003

340 N.L.R.B. 1196 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196
Nicholas Morrone and Robert M. Verbosky d/b/a
Nick and Bob Partners d/b/a VMI Cabinets and
Millwork, and/or VMI Cabinets and Millwork,
Inc. and/or Nicholas Morrone, and/or Robert M.
Verbosky, Alter Egos and Greater Pennsylvania
Regional Council of Carpenters a/w United
Brotherhood of Carpenters and Joiners of
America. Case 6–CA–33210
November 28, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
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. Based on a charge and an
amended charge filed by Greater Pennsylvania Regional
Council of Carpenters a/w United Brotherhood of Car-
penters and Joiners of America, the Union, on January 30
and May 16, 2003, respectively, the General Counsel
issued the complaint on May 30, 2003, against Nicholas
Morrone and Robert M. Verbosky d/b/a Nick and Bob
Partners d/b/a VMI Cabinets and Millwork (Respondent
Partnership), and/or VMI Cabinets and Millwork, Inc.
(Respondent Corporation), and/or Nicholas Morrone
(Respondent Morrone), and/or Robert M. Verbosky (Re-
spondent Verbosky), alter egos, collectively called the
Respondent. The complaint alleges that the Respondent
has violated Section 8(a)(1) and (5) of the Act. The Re-
spondent failed to file an answer.
On July 21, 2003, the General Counsel filed a Motion
for Default Judgment with the Board. On July 24, 2003,
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 re-
sponse. The allegations in the motion are therefore un-
disputed.
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 June 13, 2003, all the
allegations in the complaint would be considered admit-
ted. Further, the undisputed allegations in the General
Counsel’s motion disclose that the Region, by letter
dated June 19, 2003, notified the Respondent that unless
an answer was received “by the close of business on the
third business day following receipt of this letter,” a mo-
tion for default judgment would be filed.1 Nevertheless,
the Respondent did not file an answer to the complaint.
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, Respondent Partnership has been
owned jointly by Nicholas Morrone and Robert M. Ver-
bosky, partners, doing business as VMI Cabinets and
Millwork.
At all material times, Respondent Partnership, with an
office and place of business in Lemont Furnace, Penn-
sylvania, herein called Respondent Partnership’s facility,
has been engaged in the manufacture and installation of
custom cabinets for commercial and residential custom-
ers.
At all material times, Respondent Corporation, with an
office and place of business in Lemont Furnace, Penn-
sylvania, herein called Respondent Corporation’s facil-
ity, has been engaged in the manufacture and installation
of custom cabinets for commercial and residential cus-
tomers.
At all material times, Respondent Partnership and Re-
spondent Corporation have been affiliated business en-
terprises with common officers, ownership, directors,
management and supervision; have formulated and ad-
ministered a common labor policy; have shared common
premises and facilities; have employed the same person-
nel and have held themselves out to the public as a sin-
gle-integrated business enterprise and alter ego.
On or about June 28, 2002, Respondent Corporation
was established by Respondent Partnership, Respondent
Morrone, and Respondent Verbosky, as a subordinate
instrument to and a disguised continuation of Respondent
Partnership.
Based on the operations described above, Respondent
Partnership, Respondent Corporation, Respondent Mor-
rone and Respondent Verbosky are, and have been at all

1 The General Counsel’s motion indicates that the Respondent has
filed a petition for bankruptcy. It is well established 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, 295 NLRB 933 fn. 2
(1989), and cases cited there. Board proceedings fall within the excep-
tion to the automatic stay provisions for proceedings by a governmental
unit to enforce its police or regulatory powers. See id.; 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. 142
NICK & BOB PARTNERS 1197
material times, alter egos and a single employer within
the meaning of the Act.
At all material times, Respondent Morrone and Re-
spondent Verbosky have each disregarded the separate
business form of Respondent Partnership and Respon-
dent Corporation and personally conducted the business
of each of the aforementioned entities.
By virtue of the activities and conduct described
above, there is a unity of interest and ownership such that
the separate personalities of Respondent Partnership,
Respondent Corporation, Respondent Morrone, and Re-
spondent Verbosky no longer exist and adherence to the
fiction of separate business existence would sanction
fraud or promote injustice.
Since on or about March 5, 2003, Robert H. Sloan has
been duly designated by the U.S. Bankruptcy Court for
the Western District of Pennsylvania as the trustee in the
bankruptcy of Respondent Morrone, with full authority
to continue Respondent’s operations and to exercise all
powers necessary to the administration of Respondent’s
business.
Since on or about March 5, 2003, Robert H. Sloan has
been duly designated by the U.S. Bankruptcy Court for
the Western District of Pennsylvania as the trustee in the
bankruptcy of Respondent Verbosky, with full authority
to continue Respondent’s operations and to exercise all
powers necessary to the administration of Respondent’s
business.
Since on or about March 7, 2003, Robert H. Sloan has
been duly designated by the U.S. Bankruptcy Court for
the Western District of Pennsylvania as the trustee in the
bankruptcy of Respondent Partnership, with full author-
ity to continue Respondent’s operations and to exercise
all powers necessary to the administration of Respon-
dent’s business.
During the 12-month period ending December 31,
2002, Respondent Partnership, in conducting its business
operations described above, purchased and received at its
Lemont Furnace, Pennsylvania facility goods valued in
excess of $50,000 directly from points located outside
the Commonwealth of Pennsylvania.
During the 12-month period ending December 31,
2002, Respondent Corporation, in conducting its busi-
ness operations described above, purchased and received
at its Lemont Furnace, Pennsylvania facility goods val-
ued in excess of $50,000 directly from points located
outside the Commonwealth of Pennsylvania.
We find that at all material times, the Respondent col-
lectively has been 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, 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:

Nicholas Morrone — CEO, Owner
Robert M. Verbosky — Manager, Owner

The Respondent, by Nicholas Morrone, interrogated
employees concerning their union support and sympa-
thies, as follows:
(a) In and about late November 2002, the exact dates
being unknown to the General Counsel but known to the
Respondent, in small group meetings, at the Respon-
dent’s Lemont Furnace, Pennsylvania facility, by asking
employees whether they would honor a strike if the Un-
ion engaged in a strike.
(b) On or about December 16 and 17, 2002, in Mor-
rone’s office at the Respondent’s Lemont Furnace, Penn-
sylvania facility, by asking employees “where they stood
if he went against the Union.”
(c) On or about December 18, 2002, at the Respon-
dent’s Lemont Furnace, Pennsylvania facility, in a large
group meeting, by asking “where employees stood if he
decided to go without the Union.”
The following employees of the Respondent, herein
called the Unit, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:

All production and maintenance employees employed
by Respondent Partnership at its Lemont Furnace,
Pennsylvania facility; excluding all other employees,
such as office clerical employees, guards, professional
employees, and supervisors as defined in the Act.

Since about August 2001, 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 Re-
spondent Partnership and by the Respondent. This rec-
ognition has been embodied in successive collective-
bargaining agreements between Respondent Partnership
and the Union, the most recent of which is effective from
August 1, 2002, to August 31, 2004.
At all times since August 2001, based on Section 9(a)
of the Act, the Union has been the exclusive collective-
bargaining representative of the unit.
On or about January 8, 2003, the Respondent made the
decision to close its Lemont Furnace, Pennsylvania, fa-
cility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198
On or about April 23, 2003, the Respondent ceased all
operations.
The Respondent closed the Lemont Furnace facility
and ceased all operations without prior notice to the Un-
ion and without affording the Union an opportunity to
bargain with the Respondent with respect to the effects
of the closure and cessation of business on unit employ-
ees.
On or about December 16, 2002, the Respondent tem-
porarily laid off all of its employees, and on or about
January 8, 2003, the Respondent converted the tempo-
rary layoff to a permanent layoff.
On or about January 8, 2003, the Respondent recalled
certain of its employees to assist in the dismantling and
transportation of the Respondent’s equipment from its
Lemont Furnace, Pennsylvania facility.
On or about February 28, 2003, the Respondent sub-
contracted all of the work formerly performed by bar-
gaining unit employees to Jon-Christopher Interior Con-
cepts, Inc., in an effort to operate as a disguised continu-
ance of the Respondent, and on or about April 23, 2003,
the subcontracting arrangement terminated.
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 purposes of collective
bargaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to its conduct or the effects of
its conduct.
Since on or about August 1, 2002, the Respondent
ceased making contractually-mandated pension fund and
benefit fund contributions to the Carpenters Combined
Funds, Inc. as required by articles 12 and 18 of the col-
lective-bargaining agreement set forth above.
On or about January 8, 2003, the Respondent changed
the wage rates and payment method and failed to pay
those employees who assisted in the dismantling and
transportation of the Respondent’s equipment.
By failing to make contractually-mandated pension
and benefit fund contributions; by laying off all of its
employees; by recalling certain employees; by changing
the wage rate and payment method of recalled employees
and failing to pay them wages; and by subcontracting all
of the work formerly performed by bargaining unit em-
ployees, the Respondent has failed to continue in effect
all of the terms and conditions of the collective-
bargaining agreement by failing to continue in effect the
terms and conditions set forth in articles 12 and 18, 6, 4,
5, and 28 of such agreement, respectively.
The Respondent engaged in the conduct described
above without prior notice to the Union and without the
Union’s consent.2
CONCLUSIONS OF LAW
By interrogating employees concerning their union
support and sympathies, the Respondent has been inter-
fering with, restraining, and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act,
in violation of Section 8(a)(1) of the Act.
By laying off unit employees and subcontracting all
bargaining unit work, without prior notice to the Union,
and without affording it an opportunity to bargain over
the layoff and subcontracting and their effects as a direct
result of its decisions to close the Lemont Furnace facil-
ity and cease all operations; by closing the Lemont Fur-
nace facility and ceasing all operations without prior no-
tice to the Union, and without affording it an opportunity
to bargain over the effects of the closure and cessation of
all operations on unit employees; and by failing to con-
tinue in effect the terms and conditions set forth in arti-
cles 12 and 18, 6, 4, 5, and 28 of the 2002–2004 collec-
tive-bargaining agreement, the Respondent has failed and
refused to bargain collectively and in good faith with the
exclusive collective-bargaining representative of the unit
employees within the meaning of Section 8(d), in viola-
tion of Section 8(a)(5) and (1) of the Act.
The Respondent’s unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Our dissenting colleague would deny the General
Counsel’s motion in its entirety because he finds that the
allegations of the complaint are insufficient to establish
that the layoff and subcontracting were effects of the
Respondent’s decision to cease operating; that the collec-
tive-bargaining agreement specifically proscribed the
layoff and subcontracting; or that the Respondent’s al-
leged breaches of the collective-bargaining agreement
were violative of Section 8(a)(5). Our colleague’s posi-
tion does not withstand scrutiny.

2 The complaint also alleges that the Respondent violated the Act by
failing to bargain over its decisions to close the Lemont Furnace facility
and to cease all operations. Although the complaint alleges that these
decisions were mandatory subjects of bargaining, we find that the alle-
gations of the complaint do not support a cause of action given the
Supreme Court’s decision in First National Maintenance v. NLRB, 452
U.S. 666 (1981). Accordingly, we shall deny the motion for default
judgment with respect to these allegations and remand them for further
appropriate action. Nothing herein will require a hearing if, in the
event of the amendment to the complaint, the Respondent again fails to
answer, thereby admitting evidence that would permit the Board to find
the alleged violations. In such circumstances, the General Counsel may
renew the motion for default judgment with respect to the amended
complaint allegations.
NICK & BOB PARTNERS 1199
As set forth above, the complaint alleges that on or
about January 8, 2003, the Respondent permanently laid
off all of its employees (unit and nonunit) and closed its
Lemont Furnace, Pennsylvania facility; on or about Feb-
ruary 28, it subcontracted unit work; on or about March
5, it entered into bankruptcy; and on or about April 23,
the subcontracting terminated and the Respondent ceased
all operations. In our view, these facts clearly establish
that the Respondent decided to go out of business en-
tirely due to its financial condition, then contracted out a
small portion of work that was already in the pipeline.
Accordingly, we find that the Respondent’s decisions to
layoff unit employees and subcontract unit work resulted
directly from, and hence were bargainable effects of, the
closing.3
Concededly, as the dissent emphasizes, “the subcon-
tracting and layoffs are separately alleged” in the com-
plaint. However, even assuming, arguendo, that the lay-
off and subcontracting decisions were separate from, and
independent of, the Respondent’s decision to go out of
business, this would not warrant denial of the General
Counsel’s motion. As set forth above, the complaint
alleges that the layoff and subcontracting decisions were
mandatory subjects of bargaining and that the Respon-
dent violated Section 8(a)(5) and (1) by failing to bargain
over the decisions or their effects. The Respondent has
failed to file an answer to the complaint, and has thereby
effectively admitted these allegations. See Section
102.20 of the Board’s Rules and Regulations.
Given the Respondent’s admission that it committed
the unfair labor practices, the Board’s sole responsibility
is to determine whether the complaint allegations support
a cause of action. In contrast to the complaint allegations
relating to the closure of the facility and cessation of op-
erations, the layoff and subcontracting allegations amply
support an unfair labor practice finding.

3 See Lenz & Riecker, 340 NLRB 143, 145 (2003) (employer’s deci-
sion to layoff unit employees and subcontract unit work that resulted
directly from the employer’s decision to close its business was a man-
datory subject of bargaining as an effect of the closure decision, citing
Bridon Cordage, Inc., 329 NLRB 258, 259 (1999)).
The dissent errs in speculating that the subcontracting and layoff de-
cisions were “part and parcel of the decision to go out of business.”
While the Respondent could have chosen to present such a possible
defense, it has not done so. The dissent should not offer a defense for a
respondent that has amply shown that it does not wish to be troubled
raising its own. Indeed, in a similar default judgment case, our dissent-
ing colleague recently joined us in finding unilateral subcontracting to
be an “effect” of a plant closure without, sua sponte, arguing that the
former decision was “part and parcel” of the latter. Buffalo Weaving &
Belting, 340 NLRB 684, 685 (2003). In Buffalo Weaving, as in this
case, the complaint separately alleged that the Respondent unlawfully
failed to bargain over the subcontracting, and it did not specifically
allege that the subcontracting was an effect of the respondent’s decision
to close.
It is well settled, and our colleague does not dispute,
that the layoff of unit employees and the subcontracting
of bargaining unit work, without providing the represen-
tative of the unit notice and an opportunity to bargain,
violates Section 8(a)(5) of the Act.4 While there may be
facts that establish that such conduct is not unlawful, in
the absence of an answer, there is no contention, and no
basis in the pleadings to conclude, that such facts exist
here. Therefore, even assuming that the Respondent’s
layoff and subcontracting decisions were independent of
its cessation of operations, we nevertheless find it appro-
priate to grant the General Counsel’s motion for default
judgment with respect to these allegations.
As noted above, our colleague also contends that the
complaint does not provide a sufficient basis for finding
that the layoff and subcontracting were violative of the
collective-bargaining agreement. Our colleague ac-
knowledges that the complaint alleges that the layoff and
subcontracting breached specific articles of the agree-
ment. However, he argues that because we do not have
the agreement before us, we cannot be sure. We respect-
fully disagree with our colleague’s position. If the lay-
offs and subcontracting did not breach the collective-
bargaining agreement, the Respondent could have filed
an answer alleging as much. It failed to do so; therefore,
it has effectively admitted these allegations.
Further, to the extent our colleague suggests that the
Respondent’s conduct constitutes a “mere breach of con-
tract” and not an unfair labor practice, we reject that sug-
gestion. As an initial matter, we find it significant that
the Respondent itself does not contend that default judg-
ment should be denied based on the “mere breach of con-
tract” theory. Therefore, we need not address that issue.5
In any event, the dissent’s position lacks merit. The
layoff and subcontracting resulted in the elimination of
the unit and led to the premature termination of the Re-
spondent’s bargaining relationship with the Union.
Moreover, the layoff and subcontracting allegations can-
not be viewed in isolation, but must be considered in the
context of the complaint as a whole. See Bristol Nursing
Home, 338 NLRB 737 fn. 5 (2002) (in determining
whether complaint sufficiently alleges a violation, indi-
vidual allegations should not be viewed in isolation, but
should be construed in the context of the complaint as a
whole). The complaint alleges, and the Respondent ad-
4 Porta-King Building Systems v. NLRB, 14 F.3d 1258 (8th Cir.
1994) (unilateral layoff of unit employees); Fibreboard Paper Products
Corp. v. NLRB, 379 U.S. 203 (1964) (unilateral subcontracting of unit
work).
5 See, e.g., Avne Systems, Inc., 331 NLRB 1352, 1354 (2000) (Board
Member’s dissenting argument not made by excepting party itself is not
procedurally before the Board).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200
mits, that during the same time period, the Respondent
breached the collective-bargaining agreement and vio-
lated the Act by, among other things, failing to make
contractually required pension and benefit fund payments
over a period of approximately 9 months and failing to
pay contractual wages. Hence, the Respondent’s conduct
was not simply a failure to adhere to certain contractu-
ally-mandated terms and conditions of employment, but
rather, a basic repudiation of the collective-bargaining
relationship. See Oak Cliff-Golman Baking Co., 207
NLRB 1063, 1064 (1973), enfd. mem. 505 F.2d 1302
(5th Cir. 1974), cert. denied 423 U.S. 826 (1975) (em-
ployer’s midterm unilateral change in contractual wage
rate was “not just mere breach of contract” but a “basic
repudiation of the bargaining relationship”); New Mexico
Symphony Orchestra, Inc., 335 NLRB 896, 898 (2001)
(rejecting claim that respondent’s failure to make timely
and full contractual wage payments was “a de minimis
failure to abide by the contractually mandated terms and
conditions of employment,” that did not rise to the level
of an 8(a)(5) violation). See also E.R. Steubner, Inc., 313
NLRB 459 (1993) (subcontracting in breach of collec-
tive-bargaining agreement is an 8(a)(5) violation); CBS
Corporation, 326 NLRB 861 (1998) (unilateral subcon-
tracting in contravention of collective-bargaining agree-
ment’s zipper clause violates 8(a)(5)).
In sum, contrary to our colleague, we find that the un-
disputed complaint allegations are sufficient to establish
that the Respondent violated Section 8(a)(1) by interro-
gating employees concerning their union support and
sympathies, and violated Section 8(a)(5) and (1) by fail-
ing to provide the Union with notice and an opportunity
to bargain over the effects of its decision to close its Le-
mont Furnace, Pennsylvania facility and cease opera-
tions, including the layoff of unit employees and subcon-
tracting of unit work, and by failing to continue in effect
the terms and conditions set forth in the collective-
bargaining agreement. Accordingly, a partial default
judgment based on the Respondent’s failure to answer
the complaint is warranted.
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 failure to bargain with the Union about
the effects on unit employees of the closure of its Lemont
Furnace facility and cessation of all operations, including
the layoff of unit employees and subcontracting of unit
work, we shall order the Respondent to bargain with the
Union, on request, about these subjects.6 Because of the
Respondent’s unlawful conduct, however, the laid off
unit employees have been denied an opportunity to bar-
gain through their collective-bargaining representative.
Meaningful bargaining cannot be assured until some
measure of economic strength is restored to the Union.
A bargaining order alone, therefore, cannot serve as an
adequate remedy for the unfair labor practices commit-
ted.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our Order with a lim-
ited backpay requirement designed to make whole the
employees for losses suffered as a result of the violations
and to recreate in some practicable manner a situation in
which the parties’ bargaining position is not entirely de-
void of economic consequences for the Respondent. We
shall do so by ordering the Respondent to pay backpay to
the laid off employees in a manner similar to that re-
quired in Transmarine Navigation Corp., 170 NLRB 389
(1968),7 as clarified by Melody Toyota, 325 NLRB 846
(1998).
Thus, the Respondent shall pay its laid off employees
backpay at the rate of their normal wages when last in the
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 about the effects on
unit employees of its decisions to close the Lemont Fur-
nace facility and cease all operations, including the layoff
of all employees and the subcontracting of unit work; (2)
a bona fide impasse in bargaining; (3) the Union’s failure
to request bargaining within 5 business days after receipt
of this Decision and Order, or to commence negotiations
within 5 business days after receipt of the Respondent’s
notice of its desire to bargain with the Union; or (4) the
Union’s subsequent 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 all business

6 We are providing a Transmarine “effects” remedy for the Respon-
dent’s unlawful failure to bargain over the layoffs and the subcontract-
ing of unit work, because the given facts indicate that they were the
direct result of the Respondent’s decisions to close its Lemont Furnace
facility and cease operating. The layoffs and the subcontracting hence
were bargainable effects of the closing. See Bridon Cordage, Inc., 329
NLRB 258, 259 fn. 11 (1999). However, because we also find that the
Respondent failed to continue in effect the terms and conditions of the
collective-bargaining agreement by laying off unit employees and
subcontracting unit work, we shall order the Respondent to make whole
the laid off employees for any loss of earnings and other benefits from
the date of the layoff to the date the Respondent ceased all business
operations.
7 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
NICK & BOB PARTNERS 1201
operations to the time they secured equivalent employ-
ment 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 earn-
ings which the laid off employees would normally have
received during the applicable period, less any net in-
terim earnings, and shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
In addition, having found that the Respondent violated
Section 8(a)(5) and (1) since August 2002, by failing and
refusing to continue in effect all the terms and conditions
of the 2002–2004 collective-bargaining agreement by,
inter alia, failing to pay pension fund and benefit fund
contributions on behalf of the unit employees and failing
to pay contractual wages and benefits to unit employees
who assisted in the dismantling and transportation of the
Respondent’s equipment on or about January 8, 2003, we
shall order the Respondent to make whole its unit em-
ployees for any loss of earnings and other benefits they
have suffered as a result. In addition, we shall order the
Respondent to make all contractually required pension
and benefit fund contributions that have not been made
since that date, including any additional amounts due the
funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 6 (1979). The Respondent shall
also 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
(1980), enfd. 661 F.2d 940 (9th Cir. 1981).8 Payments to
the unit employees shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, supra.
Having found that the Respondent also failed to con-
tinue in effect the terms and conditions of the collective-
bargaining agreement by laying off unit employees and
subcontracting unit work, we shall order the Respondent
to make whole the laid off employees for any loss of
earnings and other benefits from the date of the layoff to
the date the Respondent ceased all business operations.
Backpay shall be computed in the manner prescribed in

8 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respon-
dent will reimburse the employee, but the amount of such delinquency
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
F. W. Woolworth Co., supra, with interest as prescribed
in New Horizons for the Retarded, supra.
Because the Respondent ceased all operations after it
laid off unit employees and subcontracted out unit work,
we shall not order it to restore the status quo ante by re-
establishing the subcontracted operations and offering
unit employees reinstatement. To further effectuate the
policies of the Act, however, in the event the Respondent
resumes the same or similar business operations, we shall
require the Respondent, within 14 days thereafter, to of-
fer those unit employees who were laid off reinstatement
to their former positions or, if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
Finally, in view of the fact that the Respondent’s Le-
mont Furnace facility is currently closed, we shall order
the Respondent to mail a copy of the attached notice to
the Union and to the last known addresses of its former
employees who were employed by the Respondent since
August 1, 2002, in order to inform them of the outcome
of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Nicholas Morrone and Robert M. Verbosky
d/b/a Nick and Bob Partners d/b/a VMI Cabinets and
Millwork, and/or VMI Cabinets and Millwork, Inc.
and/or Nicholas Morrone, an Individual, and/or Robert
M. Verbosky, an Individual, Alter Egos, Lemont Fur-
nace, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union
sympathies and support.
(b) Failing and refusing to honor articles 12 and 18, 6,
4, 5, and 28 of the 2002–2004 collective-bargaining
agreement with Greater Pennsylvania Regional Council
of Carpenters a/w United Brotherhood of Carpenters and
Joiners of America by laying off unit employees and
subcontracting all unit work, failing to make contractu-
ally-mandated pension fund and benefit fund contribu-
tions on behalf of the unit employees, and failing to ap-
ply the terms and conditions of the agreement, including
wages and benefits, to unit employees who assisted in the
dismantling and transportation of the Respondent’s
equipment on or about January 8, 2003. The appropriate
unit is:
All production and maintenance employees employed
by Respondent Partnership at its Lemont Furnace,
Pennsylvania facility; excluding all other employees,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202
such as office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
(c) Laying off unit employees and subcontracting all
bargaining unit work, without prior notice to the Union,
and without affording it an opportunity to bargain over
the layoff and subcontracting and their effects as a direct
result of its decisions to close the Lemont Furnace facil-
ity and cease all operations.
(d) Closing the Lemont Furnace facility and ceasing all
operations without prior notice to the Union, and without
affording it an opportunity to bargain over the effects of
its conduct on unit employees.
(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) Honor and comply with articles 12 and 18, 6, 4, 5,
and 28 of the 2002–2004 collective-bargaining agree-
ment with the Union.
(b) Make whole the unit employees for any loss of
wages and other benefits they may have suffered as a
result of its failure to abide by the 2002–2004 collective-
bargaining agreement, with interest, as set forth in the
remedy section of this Decision.
(c) Make all contractually required pension and benefit
fund contributions on behalf of unit employees that have
not been made since August 2002, and reimburse unit
employees for any expenses ensuing from its failure to
make the required payments, with interest, in the manner
set forth in the remedy section of this decision.
(d) In the event the Respondent resumes the same or
similar business operations, within 14 days thereafter,
offer those unit employees who were laid off in or about
December 16, 2002, reinstatement to their former posi-
tions or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(e) On request, bargain with the Union over the layoff
of unit employees and subcontracting of all unit work,
and their effects as a direct result of its decisions to close
the Lemont Furnace facility and cease all operations, and
reduce to writing and sign any agreement reached as a
result of such bargaining.
(f) On request, bargain with the Union over the effects
of the closure of the Lemont Furnace facility and cessa-
tion of operations on unit employees, and reduce to writ-
ing and sign any agreement reached as a result of such
bargaining.
(g) Pay to the unit employees their normal wages for
the period set forth in the remedy section of this decision.
(h) 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.
(i) 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, signed
and dated copies of the attached notice marked “Appen-
dix”9 to the Union and to all unit employees employed at
the Lemont Furnace facility on or after August 1, 2002.
(j) 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.

CHAIRMAN BATTISTA, dissenting.
I would deny, in its entirety, the General Counsel’s
motion for default judgment.
The complaint alleges that the Respondent decided to
close the facility.1 The complaint further alleges that the
Respondent violated Section 8(a)(5) “with respect to this
conduct and the effects of this conduct.”2 My colleagues
conclude that the complaint alleges insufficient facts to
show that the closing itself was a mandatory subject.
They therefore deny default judgment in this respect. I
agree.3
The complaint also alleges that the Respondent’s sub-
contracting and layoffs were unlawful under Section
8(a)(5). I believe that these decisions were part and par-
cel of the decision to go out of business. Indeed, the lay-
offs occurred on January 8, the very same day on which
the Respondent decided to go out of business. My col-
leagues concede that the decision to go out of business
was not a mandatory subject. Accordingly, it would
seem to follow that decisions that are part and parcel of
the basic decision to go out of business are also non-
mandatory subjects. At the very least, the complaint
allegations raise sufficient concerns as to warrant the
denial of a default judgment.

9 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.”
1 See par. 18(c).
2 See par. 23.
3 See infra for a discussion of “effects.”
NICK & BOB PARTNERS 1203
My colleagues contend that the layoff and subcontract-
ing decisions were effects of the Respondent’s decision
to go out of business. If the complaint had so alleged,
and if the complaint had further alleged a refusal to bar-
gain about these effects, I would likely grant default
judgment. However, the complaint alleges the subcon-
tracting and layoffs as decisions, not as effects. Conced-
edly, paragraph 23 of the complaint generally mentions
“effects.” However, the subcontracting and layoffs are
separately alleged and thus it is unclear as to whether the
“effects” mentioned in paragraph 23 are intended to refer
to subcontracting and layoffs.
My colleagues rely on Buffalo Weaving & Belting, 340
NLRB 684 (2003). That case is inapposite. The relevant
footnote in that case (fn. 2) focuses on why a limited
Transmarine remedy is ordered rather than a fuller rem-
edy. In explaining this matter, the Board noted that the
subcontracting was a “bargainable effect of the closing.”
There is no basis for such a finding here.
Finally, the complaint alleges that the subcontracting
and layoffs are violations of the contract. However, a
mere breach of contract is not a violation of Section
8(a)(5).4 In the instant case, it is difficult to say whether
the conduct was a contract breach, let alone a modifica-
tion. The complaint alleges only that various numbered
articles of the contract have been breached.5 However,
since the contract is not before us, we do not even know
what these articles say.
My colleagues say that the Respondent did not raise
the aforementioned issues. Of course, in a “no answer”
case, there is no contention at all from the respondent.
However, it is nonetheless the Board’s responsibility, in
such cases, to examine the complaint and make an in-
formed judgment as to whether the complaint will sup-
port a motion for default judgment. As discussed above,
the complaint herein is not well pleaded. Accordingly, I
would deny default judgment. Of course, the General
Counsel is free to seek leave to amend the complaint to
make the allegations clearer and legally viable. In my
view, that is the appropriate course to follow.
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 post and
obey this notice.

4 NCR Corp., 271 NLRB 1212 (1984).
5 See par. 20.
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 interrogate employees concerning
their union sympathies and support.
WE WILL NOT fail to honor articles 12 and 18, 6, 4,
5, and 28 of our 2002–2004 collective-bargaining agree-
ment with Greater Pennsylvania Regional Council of
Carpenters a/w United Brotherhood of Carpenters and
Joiners of America by laying off unit employees and
subcontracting all unit work, failing to make contractu-
ally-mandated pension fund and benefit fund contribu-
tions on behalf of the unit employees, and failing to ap-
ply the terms and conditions of the agreement, including
wages and benefits, to unit employees who assisted in the
dismantling and transportation of our equipment on or
about January 8, 2003. The appropriate unit is:

All production and maintenance employees employed
by Respondent Partnership at its Lemont Furnace,
Pennsylvania facility; excluding all other employees,
such as office clerical employees, guards, professional
employees and supervisors as defined in the Act.

WE WILL NOT layoff unit employees and subcontract
all bargaining unit work, without prior notice to the Un-
ion, and without affording it an opportunity to bargain
over the layoff and subcontracting and their effects as a
direct result of our decisions to close the Lemont Furnace
facility and cease all operations.
WE WILL NOT close the Lemont Furnace facility and
cease all operations without prior notice to the Union,
and without affording it an opportunity to bargain over
the effects of the closure and cessation of operations on
unit employees.
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 honor and comply with articles 12 and 18,
6, 4, 5, and 28 our 2002–2004 collective-bargaining
agreement with Greater Pennsylvania Regional Council
of Carpenters a/w United Brotherhood of Carpenters and
Joiners of America.
WE WILL make whole unit employees for any loss of
wages and other benefits they may have suffered as a
result of our failure to abide by articles 12 and 18, 6, 4, 5,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1204
and 28 the 2002-2004 collective-bargaining, with inter-
est.
WE WILL make all contractually required pension and
benefit fund contributions that have not been made since
August 2002, and reimburse unit employees for any ex-
penses ensuing from our failure to make the required
payments, with interest.
WE WILL, in the event we resume the same or similar
business operations, within 14 days thereafter, offer the
laid off unit employees reinstatement to their former po-
sitions or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL, on request, bargain with the Union over the
layoff of unit employees and subcontracting of all bar-
gaining unit work and their effects as a direct result of
our decisions to close the Lemont Furnace facility and
cease all operations, and reduce to writing and sign any
agreement reached as a result of such bargaining.
WE WILL, on request, bargain with the Union over the
effects of the closure of the Lemont Furnace facility and
cessation of all operations on unit employees, and reduce
to writing and sign any agreement reached as a result of
such bargaining.
WE WILL pay the unit employees their normal wages
when last in our employ from 5 days after the date of this
decision until occurrence of the earliest of the following
conditions: (1) we bargain to agreement with the Union
about the effects on unit employees of our decisions to
close the Lemont Furnace facility and cease all opera-
tions, including the layoff of all employees and the sub-
contracting of unit work; (2) a bona fide impasse in bar-
gaining occurs; (3) the failure of the Union to request
bargaining within 5 business days after receipt of this
decision, or to commence negotiations within 5 business
days after receipt of notice of our desire to bargain with
the Union; or (4) the subsequent failure of the Union to
bargain in good faith; but in no event shall the sum paid
to any employee exceed the amount that he or she would
have earned as wages from April 23, 2003, the date we
ceased all business operations, to the time he or she se-
cured equivalent employment elsewhere, or the date on
which we shall have offered to bargain in good faith,
whichever occurs sooner; provided, however, that in no
event shall this sum be less than these employees would
have earned for a 2-week period at the rate of their nor-
mal wages when last in our employ, with interest.

NICHOLAS MORRONE AND ROBERT M.
VERBOSKY D/B/A NICK AND BOB
PARTNERS D/B/A VMI CABINETS AND
MILLWORK, AND/OR VMI CABINETS
AND MILLWORK, INC. AND/OR
NICHOLAS MORRONE, AND/OR ROBERT
M. VERBOSKY, ALTER EGOS