Rexart Corp.

National Labor Relations Board - Board Decisions

Sep 17, 1984

272 N.L.R.B. 25 (N.L.R.B. 1984)

REXART CORP 25
Rexart Corporation and Graphic Communications
Union Local 404M, Graphic Communications
International Union, AFL-CIO Case 21-CA-
23082
17 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union 26 March
1984, the General Counsel of the National Labor
Relations Board issued a complaint 10 May 1984
against the Company, the Respondent, alleging that
it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act Although properly
served copies of the charge and complaint, the
Company has failed to file an answer
On 11 June 1984 the General Counsel filed a
Motion for Summary Judgment On 14 June 1984
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted The Company
filed no response The allegations in the motion are
therefore undisputed
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
Section 102 20 of the Board's Rules and Regula-
tions provides that the allegations in the complaint
shall be deemed admitted if an answer is not filed
within 10 days from service of the complaint,
unless good cause is shown The complaint states
that unless an answer is filed within 10 days of
service, "all of the allegations in said complaint
shall be deemed to be admitted to be true and may
be so found by the Board" Further, the undisputed
allegations in the Motion for Summary Judgment
disclose that the General Counsel, by letter dated
25 May 1984, notified the Company that unless an
answer was received by 4 June 1984 a Motion for
Summary Judgment would be filed No such
answer was submitted
In the absence of good cause being shown for
the failure to file a timely answer, we grant the
General Counsel's Motion for Summary Judg-
ment 1
1 In granting the General Counsel s Motion for Summary Judgment,
Chairman Dotson specifically relies on the total failure of the Respondent
to contest either the factual allegations or the legal conclusions of the
General Counsel's complaint Thus the Chairman regards this proceeding
as being essentially a default judgment which is without precedential
value
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Company is engaged in the manufacture of
ink at its facility in Los Angeles, California, where,
during the past calendar year, it sold and shipped
goods and products valued in excess of $50,000 to
customers located within the State of California,
each of which, in turn, during the same period of
time, sold and shipped goods and products valued
in excess of $50,000 directly to customers located
outside the State of California or purchased and re-
ceived goods and products valued in excess of
$50,000 directly from suppliers located outside the
State of California We find that the Company is an
employer engaged in commerce within the mean-
ing of Section 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
Since at least 1 January 1981, the Union has been
recognized as the exclusive bargaining representa-
tive for an appropriate unit within the meaning of
Section 9(b) of the Act consisting of the following
employees
All working foremen, combination men, mill-
men, shipping and receiving clerks, shipper-
drivers A, shipper-drivers B and utility work-
ers employed by the Respondent at its facility
located at 2437 South Eastern Avenue, Los
Angeles, California, excluding all other em-
ployees, guards and supervisors as defined in
the Act
On 1 January 1981 the Union and the Respondent
entered into a collective-bargaining agreement
which was effective until 31 December 1983 The
parties orally extended this agreement from 31 De-
cember 1983 until the completion of new contract
negotiations
About 16 January 1984 the Respondent decided
to close the above-mentioned facility Since that
time the Respondent has refused the Union's re-
quests to bargain over the effects of the plant clo-
sure on the unit employees In addition, the Re-
spondent, without notifying or bargaining with the
Union, has refused to pay accumulated vacation
pay as required by the collective-bargaining agree-
ment We find that the Respondent, by refusing to
bargain about the effects of the plant closure on
unit employees and by unilaterally failing to pay
accumulated vacation pay pursuant to the parties'
272 NLRB No 5
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement, has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act
CONCLUSIONS OF LAW
1 By refusing to bargain with the Union about
the effects of the plant closure on unit employees,
the Company has violated Section 8(a)(5) and (1)
of the Act
2 By refusing to pay accumulated vacation pay
required by the parties' collective-bargaining agree-
ment, the Company has violated Section 8(a)(5)
and (1) of the Act
3 The aforesaid unfair labor practices affect
commerce within the meaning of 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 designed to effectuate the policies of the
Act
We shall order the Respondent to pay the accu-
mulated vacation pay owing to unit employees pur-
suant to the parties' collective-bargaining agree-
ment Interest on the vacation pay owed unit em-
ployees shall be paid in the manner prescribed in
Florida Steel Corp, 231 NLRB 651 (1977) 2
With respect to the Respondent's unlawful fail-
ure to bargain with the Union about the effects of
its decision to close its Los Angeles, California fa-
cility, the bargaining unit employees have been
denied an opportunity to bargain through their col-
lective-bargaining representative 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 as-
sured 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 committed
Accordingly, we deem it necessary, in order to
effectuate the purposes of the Act, to require the
Respondent to bargain with the Union, upon re-
quest, about the effects of the closure on unit em-
ployees, and shall accompany our order with a lim-
ited backpay requirement designed both to make
the employees whole for losses suffered as a result
of the Respondent's failure to bargain, and to
recreate in some practicable manner a situation in
which the parties' bargaining position is not entire-
ly devoid of economic consequences for the Re-
spondent We shall do so in this case by requiring
2 See generally Isis Plumbing Go, 138 NLRB 716 (1962)
that the Respondent pay backpay to unit employ-
ees in a manner similar to that required in Trans-
marine Corp, 170 NLRB 389 (1968) The Respond-
ent shall pay unit 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 the occurrence of the earliest of
the following conditions (1) The date the Re-
spondent bargains to agreement with the Union on
those subjects pertaining to the effects of the plant
closure on unit employees, (2) a bona fide impasse
in bargaining, (3) the failure of the Union to re-
quest bargaining within 5 days of the date of this
Decision, or to commence negotiations within the
5 days of the Respondent's notice of its desire to
bargain with the Union, (4) the subsequent failure
of the Union to bargain in good faith In no event
shall the sum paid to any of these employees
exceed the amount they would have earned as
wages from the date on which the Respondent ter-
minated its operations to the time they secured
equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bar-
gain, whichever occurs sooner, provided, however,
that in no event shall this sum be less than the
amount these employees would have earned for a
2-week period at the rate of their normal wages
when last in the Respondent's employ
ORDER
The National Labor Relations Board orders that
the Respondent, Rexart Corporation, Los Angeles,
California, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Refusing to bargain with Graphic Communi-
cations Union Local 404M about the effects of
closing its 2437 South Eastern Avenue, Los Ange-
les, California facility on unit employees
(b) Failing and refusing to pay accumulated va-
cation pay owed to unit employees as required by
the collective-bargaining agreement between it and
the Union
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Upon request, bargain collectively with the
Union about the effects of closing its 2437 South
Eastern Avenue, Los Angeles, California facility
on unit employees and, if an understanding is
reached, embody such understanding in a signed
agreement
REXART CORP 27
(b) Pay the unit employees laid off or discharged
on the date the Respondent terminated operations
their normal wages for the period set forth in the
Remedy section of this Decision
(c) Pay unit employees the accumulated vacation
pay to which they are entitled pursuant to the col-
lective-bargaining agreement between it and the
Union, plus interest
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(e) Mail an exact copy of the attached notice
marked "Appendix" 3 to Graphic Communications
Union Local 404M, and to all the unit employees
who were employed at its 2437 South Eastern
Avenue, Los Angeles, California facility Copies of
said notice on forms provided by the Regional Di-
rector for Region 21, after being duly signed by its
authorized representative, shall be mailed immedi-
ately upon receipt thereof, as herein directed
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
3 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al 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 ordered us to post and-abide by this notice
WE WILL NOT fail and refuse to bargain with
Graphic Communications Union Local 404M,
Graphic Communications International Union,
AFL-CIO, with respect to the effects on unit em-
ployees of our decision to close our facility at 2437
South Eastern Avenue, Los Angeles, California
WE WILL NOT fail and refuse to pay accumulated
vacation pay owed to unit employees pursuant to
our collective-bargaining agreement with Local
404M
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL, on request, bargain collectively with
Graphic Communications Union Local 404M,
Graphic Communications International Union,
AFL-CIO, with respect to the effects on unit em-
ployees of our decision to close our facility at 2437
South Eastern Avenue, Los Angeles, California,
and put in writing and sign any agreement reached
as a result of such bargaining
WE WILL pay the unit employees who were em-
ployed at the Los Angeles facility their normal
wages for a period required by the Board's Deci-
sion and Order
WE WILL pay all affected employees the accu-
mulated vacation pay to which they are entitled
pursuant to our collective-bargaining agreement
with Local 404M
REXART CORPORATION