Pollack Industries

National Labor Relations Board - Board Decisions

May 22, 1997

323 N.L.R.B. 141 (N.L.R.B. 1997)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Pollack Industries, Inc. and United Paperworkers
International Union, Local 1002, AFL–CIO.
Cases 7–CA–37638, 7–CA–37638(2), and 7–CA–
38114
May 22, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Upon charges filed by the Union on September 5
and 28, 1995, and January 31, 1996, the General
Counsel of the National Labor Relations Board issued
a second consolidated amended complaint on March
10, 1997, against Pollack Industries, Inc., the Respond­
ent, alleging that it has violated Section 8(a)(5) and (1)
of the National Labor Relations Act. Although the Re­
spondent filed an answer to the prior consolidated
complaint issued on July 25, 1996, it withdrew that an­
swer on April 14, 1997, and stated that it would not
file an answer to the second consolidated amended
complaint.
On April 25, 1997, the General Counsel filed a Mo­
tion for Default Summary Judgment with the Board.
On April 29, 1997, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re­
spondent filed no response. The allegations in the mo­
tion are therefore undisputed.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un­
less good cause is shown. In addition, the second con­
solidated amended complaint affirmatively notes that
unless an answer is filed within 14 days of service, all
the allegations in the second consolidated amended
complaint will be considered admitted. Here, although
the Respondent initially did file an answer to the July
25, 1996 consolidated complaint, the Respondent with-
drew that answer on April 14, 1997, and indicated it
would not file any further answer. The Respondent’s
withdrawal of its answer to the consolidated complaint
has the same effect as a failure to file an answer, i.e.,
all allegations in both the consolidated complaint and
the second consolidated amended complaint must be
considered to be true. See Maislin Transport, 274
NLRB 529 (1985).
Accordingly, in the absence of good cause being
shown otherwise, we grant the General Counsel’s Mo­
tion for Default Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and place of business in Wyandotte,
Michigan, has been engaged in the stamping, tooling,
and manufacturing of steel and materials for the auto-
motive industry. During the calendar year ending De­
cember 1995, the Respondent, in conducting its busi­
ness operations, performed services valued in excess of
$50,000 in States other than 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 the Union is a labor organiza­
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con­
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production and
maintenance employees employed by the Re­
spondent at its Wyandotte, Michigan facility, but
excluding office employees, professional employ­
ees, guards and supervisors as defined in the Act.
At all material times, the Union has been the des­
ignated collective-bargaining representative of the unit
employees and has been recognized as such by the Re­
spondent. Such recognition has been embodied in col­
lective-bargaining agreements, the most recent of
which is effective by its terms from November 11,
1993, through November 10, 1996 (the 1993–1996
agreement). At all material times, the Union, by virtue
of Section 9(a) of the Act has been, and is now, the
exclusive representative of the unit employees for the
purposes of collective bargaining.
The 1993–1996 agreement provides, inter alia, for
the deduction of initiation fees and monthly dues from
the unit employees’ earnings on written authorization
of unit employees and the remittance of such deducted
money to the Union, for pension contributions to be
made on behalf of unit employees, for maintenance of
a health insurance program for unit employees, and for
the payment of wages to unit employees.
Since about April 1995, the Respondent has, unilat­
erally and without agreement of the Union, failed and
refused to remit initiation fees and dues deducted from
the earnings of unit employees and to make pension
contributions on behalf of the unit employees. Since
about July 1995, the Respondent has deducted moneys
323 NLRB No. 141
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from the earnings of unit employees for the purposes
of health insurance, but has, unilaterally and without
the agreement of the Union, failed and refused to make
required health insurance contributions to the insurance
carrier. For the period from about November 27
through about December 4, 1995, the Respondent, uni­
laterally and without the agreement of the Union,
failed to pay unit employees for work performed.
About December 4, 1995, the Respondent ceased
operations. About December 15, 1995, and again about
December 21, 1995, and January 11, 1996, the Union
requested the Respondent to bargain about the effects
of the Respondent’s closing, to provide certain infor­
mation to the Union regarding unit employees and the
amount of debt owed to unit employees, the Union,
and the fringe benefits funds, and to arbitrate pending
grievances. This information is necessary for and rel­
evant to the Union’s performance of its duties as the
exclusive collective-bargaining representative of the
unit. Since about December 15, 1996, the Respondent
has failed and refused to bargain with the Union about
the effects of the closing, has failed and refused to
provide the Union with the requested information, and
has failed and refused to process pending grievances
with the Union.
CONCLUSION OF LAW
By the acts and conduct described above, the Re­
spondent has been failing and refusing to bargain col­
lectively and in good faith with the exclusive collec­
tive-bargaining representative of its employees within
the meaning of Section 8(d), and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Specifically, having found that the Respondent vio­
lated Section 8(a)(5) and (1) by failing to remit to the
Union, since about April 1995, initiation fees and dues
that were deducted from the pay of unit employees
pursuant to valid dues-checkoff authorizations, we
shall order the Respondent to remit such withheld initi­
ation fees and dues to the Union as required by the
1993–1996 agreement, with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
Having found that the Respondent has also violated
Section 8(a)(5) and (1) by failing to make contractually
required pension contributions on behalf of the unit
employees since about April 1995, we shall order the
Respondent to make whole its unit employees by mak­
ing all such delinquent contributions, including any ad­
ditional amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979). In addition, the Respondent shall reimburse
unit employees for any expenses ensuing from its fail­
ure to make the required contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, supra.1
Having found that the Respondent has also violated
Section 8(a)(5) and (1) by failing, since about July
1995, to maintain contractually required health insur­
ance for its unit employees by failing to make the re­
quired health insurance contributions to the insurance
carrier, despite having deducted moneys from the earn­
ings of the unit employees for that purpose, we shall
order the Respondent to restore the employees’ health
insurance coverage and make the employees whole by
reimbursing them for any expenses ensuing from the
Respondent’s unlawful conduct, as set forth in Kraft
Plumbing & Heating, supra, with interest as prescribed
in New Horizons for the Retarded, supra.
Having found that the Respondent also violated Sec­
tion 8(a)(5) and (1) by unilaterally failing, for the pe­
riod from about November 27 through about December
4, 1995, to pay unit employees for work performed,
we shall order the Respondent to make the unit em­
ployees whole for any loss of earnings attributable to
its unlawful conduct. Backpay shall be computed in
accordance with Ogle Protection Service, supra, with
interest as prescribed in New Horizons for the Re­
tarded, supra.
Having found that the Respondent also violated Sec­
tion 8(a)(5) and (1) by failing and refusing to bargain
over the effects of the decision to cease operations on
December 4, 1995, we shall require the Respondent to
bargain with the Union concerning the effects of the
closure on its unit employees, and shall accompany our
order with a limited backpay requirement designed
both to make whole the employees for losses suffered
as a result of the violations and to re-create in some
practicable manner 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 termi­
nated employees in a manner similar to that required
1 To the extent that an employee has made personal contributions
to a fund that are 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 re­
imbursement will constitute a setoff to the amount that the Respond­
ent otherwise owes the fund.
POLLACK INDUSTRIES 3
in Transmarine Navigation Corp., 170 NLRB 389
(1968).
Thus, the Respondent shall pay its terminated em­
ployees 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 occur­
rence of the earliest of the following conditions: (1)
the date the Respondent bargains to agreement with
the Union on those subjects pertaining to the effects of
the closure on its employees; (2) a bona fide impasse
in bargaining; (3) the Union’s failure to request bar-
gaining within 5 days of the date of this Decision and
Order, or to commence negotiations within 5 days of
the Respondent’s notice of its desire to bargain with
the Union; (4) the Union’s subsequent failure to bar-
gain in good faith; but in no event shall the sum paid
to these employees exceed the amount they would
have earned as wages from the date on which the Re­
spondent terminated its operations, to the time they se­
cured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner; provided, how-
ever, that 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 Re­
spondent’s employ. Backpay shall be based on earn­
ings which the terminated employees would normally
have received during the applicable period, less any
net interim earnings, and shall be computed in accord­
ance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, supra.
Having found that the Respondent has also violated
Section 8(a)(5) and (1) by failing to provide the Union
information that is relevant and necessary to its role as
the exclusive bargaining representative of the unit em­
ployees, we shall order the Respondent to furnish the
Union the information it requested.
Having found that the Respondent has also violated
Section 8(a)(5) and (1) by failing and refusing, since
about December 15, 1995, to process pending griev­
ances with the Union, we shall order it to do so.
Finally, in view of the fact that the Respondent’s fa­
cility is currently closed, we shall order the Respond­
ent to mail a copy of the attached notice to the Union
and to the last known addresses of its former employ­
ees in order to inform them of the outcome of this pro­
ceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Pollack Industries, Inc., Wyandotte,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unilaterally or without agreement of the Union,
failing or refusing to remit initiation fees and dues de­
ducted from the earnings of the employees in the fol­
lowing unit, to make pension contributions on behalf
of the unit employees, to make required health insur­
ance contributions to the insurance carrier after deduct­
ing moneys from the earnings of unit employees for
health insurance, or to pay unit employees for work
performed:
All full-time and regular part-time production and
maintenance employees employed by the Re­
spondent at its Wyandotte, Michigan facility, but
excluding office employees, professional employ­
ees, guards and supervisors as defined in the Act.
(b) Failing or refusing to bargain about the effects
of the decision to cease operations.
(c) Failing or refusing to provide necessary and rel­
evant information requested by the Union.
(d) Failing or refusing to process pending grievances
arising under the 1993–1996 agreement.
(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) Remit to the Union, with interest, initiation fees
and dues required by the 1993–1996 agreement that
were deducted from the pay of unit employees pursu­
ant to valid dues-checkoff authorizations.
(b) Make the contractually required pension con­
tributions on behalf of the unit employees that have
not been made since April 1995, and make whole the
unit employees for any expenses resulting from its fail­
ure to do so in the manner set forth in the remedy sec­
tion of this decision.
(c) Restore the unit employees’ contractually re­
quired health insurance coverage and make them
whole for any expenses resulting from its failure to
make the required health insurance contributions to the
insurance carrier since July 1995 in the manner set
forth in the remedy section of this decision.
(d) Make the unit employees whole for any loss of
earnings, with interest, for its failure to pay them for
work performed for the period from about November
27 through about December 4, 1995.
(e) On request, bargain collectively and in good
faith with the Union with respect to the effects of the
decision to cease operations on December 4, 1995, and
reduce to writing any agreement reached as a result of
such bargaining.
(f) Pay the unit employees their normal wages for
the period set forth in the remedy section of this deci­
sion.
(g) Furnish to the Union in a timely manner the in-
formation it requested on December 15 and 21, 1995,
and January 11, 1996.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(h) Process the pending grievances filed under the
1993–1996 agreement.
(i) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay­
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(j) Within 14 days after service by the Region, the
Respondent shall duplicate and mail, at its own ex­
pense, an exact copy of the attached notice marked
‘‘Appendix’’2 to United Paperworkers International
Union, Local 1002, AFL–CIO and to all current and
former unit employees employed by the Respondent at
any time since September 5, 1995. Copies of the no­
tice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s au­
thorized representative, shall be mailed immediately
upon receipt.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. May 22, 1997
������������������
William B. Gould IV, Chairman
������������������
Sarah M. Fox, Member
������������������
John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
2 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of 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

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or­
dered us to post and abide by this notice.
WE WILL NOT unilaterally or without agreement of
the United Paperworkers International Union, Local
1002, AFL–CIO fail or refuse to remit initiation fees
and dues deducted from the earnings of the employees
in the following unit, to make pension contributions on
behalf of the unit employees, to make required health
insurance contributions to the insurance carrier after
deducting moneys from the earnings of unit employees
for health insurance, or to pay unit employees for work
performed:
All full-time and regular part-time production and
maintenance employees employed by us at our
Wyandotte, Michigan facility, but excluding office
employees, professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT fail or refuse to bargain about the ef­
fects of the decision to cease operations.
WE WILL NOT fail or refuse to provide necessary
and relevant information requested by the Union.
WE WILL NOT fail or refuse to process pending
grievances arising under the 1993–1996 agreement.
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 remit to the Union, with interest, initiation
fees and dues required by the 1993–1996 agreement
that were deducted from the pay of unit employees
pursuant to valid dues-checkoff authorizations.
WE WILL make the contractually required pension
contributions on behalf of the unit employees that have
not been made since April 1995, and make whole the
unit employees for any expenses resulting from our
failure to do so in the manner set forth in a decision
of the National Labor Relations Board.
WE WILL restore the unit employees’ contractually
required health insurance coverage and make them
whole for any expenses resulting from our failure to
make the required health insurance contributions to the
insurance carrier since July 1995 in the manner set
forth in a decision of the National Labor Relations
Board.
WE WILL make the unit employees whole for any
loss of earnings, with interest, for our failure to pay
them for work performed for the period from about
November 27 through about December 4, 1995.
WE WILL, on request, bargain collectively and in
good faith with the Union with respect to the effects
of the decision to cease operations on December 4,
1995, and reduce to writing any agreement reached as
a result of such bargaining.
WE WILL pay the unit employees their normal wages
for the period set forth in a decision of the National
Labor Relations Board.
WE WILL furnish the Union in a timely manner the
information it requested on December 15 and 21,
1995, and January 11, 1996.
POLLACK INDUSTRIES 5
WE WILL process the pending grievances filed under
the 1993–1996 agreement.
POLLACK INDUSTRIES, INC.