Romac Sportswear, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1182 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Romac Sportswear, Inc. and Local 169, Amalgamat-
ed Clothing and Textile Workers Union, AFL-
CIO. Case 22-CA-9556
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on October 22, 1979, and
amended November 7, 1979, by Local 169, Amal-
gamated Clothing and Textile Workers Union,
AFL-CIO, herein called the Union, and duly
served upon Romac Sportswear, Inc., herein called
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 22, issued a complaint and notice of
hearing against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge and complaint and
notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
Respondent failed to file an answer to the com-
plaint or request an extension of time for filing an
answer.
On August 11, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment with exhibits attached. Subse-
quently, on August 28, 1980, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment shuld not be
granted. Respondent did not thereafter file a re-
sponse to the Notice To Show Cause, and thus the
allegations of the Motion for Summary Judgment
stand uncontroverted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
252 NLRB No. 165
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in the answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing issued on
December 29, 1979, and duly served on the Re-
spondent and Union, specifically states that unless
an answer to the complaint is filed by Respondent
within 10 days of service thereof, "All of the alle-
gations in said complaint shall be deemed to be ad-
mitted to be true and may be so found by the
Board." Further, according to the uncontroverted
allegations of the General Counsel's memorandum
in support of the Motion for Summary Judgment,
by order dated May 21, 1979, and attached to the
Motion for Summary Judgment, the Regional Di-
rector advised Respondent that due to Respon-
dent's failure to file an answer, counsel for the
General Counsel would move for Summary Judg-
ment. No answer has been received.
Good cause for failure to answer the complaint
has not been shown. Under the rule set forth
above, the allegations of the complaint are deemed
admitted and are found to be true. Accordingly,
we grant the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a corporation which, until an un-
known date in October 1979, engaged in the busi-
ness of manufacturing sportswear and related prod-
ucts at its principal office and place of business 426
53d Street, West New York, New Jersey. During
the past calendar year, a representative period, Re-
spondent purchased and received at its facility in
the State of New Jersey goods and materials
valued in excess of $50,000 which were transported
directly from States other than the State of New
Jersey.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
1182
ROMAC SPORTSWEAR. INC
II. THE LABOR ORGANIZATION INVOIVEtD
Local 169, Amalgamated Clothing and Textile
Workers Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees employed by Respondent at its
West New York, New Jersey plant, including
but not limited to cutters, markers, operators,
pressers, carters, and/or shippers of garments,
office or clerical workers, miscellaneous or
auxiliary workers but excluding executives, su-
pervisors, managers and guards within the
meaning of the Act.
B. The Representative Status of the Union
The Union had represented the employees since
on or beforeSeptember 3, 1977. The current collec-
tive-bargaining agreement, which has been effec-
tive at all times material herein, expires October 15,
1981, and the Union continues to be the employees'
exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
C. The Request To Bargain and Respondent's
Refusal
Commencing on or about September 5, 1979, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about September 4, 1979, Respon-
dent offered and promised its employees an im-
proved health insurance plan to refrain from be-
coming or remaining members of the Union or
giving any assistance or support to it, and threat-
ened its employees with loss of employment if they
did join or support the Union. Further, on or about
September 5, 1979, Respondent unilaterally
changed the terms and conditions of employment
by refusing a representative of the Union access to
the plant. Respondent also unilaterally changed ex-
isting wage rates and other terms and conditions of
employment on or about October 20, 1979, not-
withstanding the provisions of the collective-bar-
gaining agreement, and since on or about Septem-
ber 5, 1979, including on or about October 20,
1979, has refused to recognize and bargain with the
Union. On or about October 22, 1979, Respondent
decided to permanently cease its business oper-
ations at the West New York plant here in ques-
tion, having neglected and failed to inform or
notify the Union of such decision at all times mate-
rial herein prior to October 22, 1979. In addition,
since an unknown date during the month of Octo-
ber 1979, Respondent has unilaterally changed the
terms and conditions of employment by failing to
remit to the Union contributions to the health and
welfare plan as required under the collective-bar-
gaining agreement, and has permanently ceased op-
erations at its West New York plant and terminated
all employees in the unit.
Accordingly, we find that Respondent has, since
on or about September 4, 1979, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the em-
ployees in the appropriate unit, and that. by such
refusal, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR I AROR
PRACTICES UPON COMMERCE.
The activities of Respondent, set forth in section
III, above, occurring in connection with the oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. HE REMEIDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom. We
shall also order it to take certain affirmative action
designed to effectuate the policies of the Act.
We have found that Respondent failed to make
required contributions to the Union's health and
welfare plan since an unknown date during Octo-
ber 1979, and unilaterally reduced its employees'
wages which conduct constituted on or about Oc-
tober 20, 1979, unilateral changes in terms and con-
ditions of employment in violation of Section
8(a)(5) and (1) of the Act. In order to dissipate the
effect of these unfair labor practices we shall order
Respondent to make whole its employees by tran-
mitting the required contributions to the Union's
health and welfare fund for October 1979, and fur-
ther make them whole for their loss of earnings
due to Respondent's unilateral wage reduction,
with interest on these lost earnings to be computed
1 183
I)IECISI()NS ()F NATIONAL ILABOR RELATIONS BOARD
in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977).'
We have further found that Respondent failed to
afford the Union an opportunity to bargain about
the effects of its closing on bargaining unit employ-
ees in violation of Section 8(a)(5) and (1) of the
Act. In order to effectuate the purposes of the Act,
we shall order Respondent to bargain with the
Union concerning the effects of closing on all bar-
gaining unit employees. However, under the pre-
sent circumstances, a bargaining order alone is an
inadequate remedy, since Respondent's unlawful
failure to bargain at the time of the shutdown
denied the employees an opportunity to bargain at
a time when there would have been some measure
of balanced bargaining power. In order to create
an atmosphere under which meaningful bargaining
can be assured, we must restore some measure of
economic strength to the Union. Therefore, we
shall accompany our order to bargain over the ef-
fects of the closing with a limited backpay require-
ment designed to make the employees whole for
losses suffered as the result of Respondent's failure
to bargain, as well as to recreate to some degree a
situation in which the parties' bargaining position is
not entirely devoid of economic consequences for
Respondent.
Accordingly, we shall order Respondent to bar-
gain with the Union, upon request, about the ef-
fects on bargaining unit employees of the closing of
Respondent's operations, and to pay these employ-
ees amounts at the rate of their normal wages
when last in Respondent's employ from 5 days
after the date of this Decision and Order until the
occurrence of the earliest of the following condi-
tions: (1) the date Respondent bargains to agree-
ment with the Union on those subjects pertaining
to the effects of the closing on bargaining unit em-
ployees; (2) a bona fide impasse in bargaining; (3)
the failure of the Union to request bargaining
within 5 days of this Decision and Order, or to
commence negotiations within 5 days of Respon-
dent's notice of its desire to bargain with the
See. generally. I Plumbinlg & leating C., 138 NLRB 716 (1962).
Member Jenkinls would award iterest onl the backpay due ill accordance
with his dissent i Olivnpic Medwl (Corporaton, 250 N R13 No. I
(1958))
Because the pros iilonis of employee benefit fund agreementt are ari-
able and conlplex, the Board does not provide at the adjudicatory stage
of a proceeding for he addition of interest at a fixed rate on unlawfully
withheld fund payments. We lease to the compliance stage the question
whether Responldent must pay ay additional amounts into the benefit
filndd in order to alisfy our "rlake-whole" remedy These additional
anmounls ilray be deterliled, depending upon the circumstances of each
case, by reference to pros i1nll in the documents governing the fullds at
issue ad, where there re 1n g overig provisions.I tevidence of any
loss directly ailttributlble to the ulawful withholding action, which might
include the loss f retrn n investment of the portion of funds withheld,
additional adill;istrati e cost. etc, but ln1t collateral losses.
Mferrrreatler Optical Cornpuanr. 240 NI.RB 1213 (179)
Union; or (4) the subsequent failure of the Union to
bargain in good faith; but in no event shall the sum
paid to any of these employees exceed the amount
he would have earned as wages from the date on
which Respondent closed the West New York
plant to the time he secured equivalent employ-
ment elsewhere; provided, however, that in no
event shall the sum be less than these employees
would have earned for a 2-week period at the rate
of their normal wages when last in Respondent's
employ. 2
Interest on all such sums shall be paid in the
manner prescribed in Florida Steel Corporation,
supra.
The Board, on the basis of the foregoing facts
and the entire record, makes the following:
CONCtUSIONS OF LAW
1. Romac Sportswear, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 169, Amalgamated Clothing and Textile
Workers Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. A unit including all employees employed by
Respondent at its West New York, New Jersey,
plant constitutes a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since on or before September 3, 1977, the
above-named labor organization has been and now
is the certified and exclusive representative of all
employees in the aforesaid appropriate unit for the
purpose of collective bargaining within the mean-
ing of Section 9(a) of the Act.
5. By offering and promising its employees an
improved health insurance plan and increased work
opportunities to refrain from bargaining or remain-
ing members of the Union or giving any assistance
or support to it, Respondent has violated Section
8(a)(5) and (1) of the Act.
6. By threatening its employees with loss of em-
ployment if they became or remained members of
the Union or gave any assistance or support to it,
Respondent has violated Section 8(a)(5) and (1) of
the Act.
7. By unilaterally changing terms and conditions
of employment by refusing a representative of the
Union access into the plant and failing to remit to
the Union the required contributions to the health
and welfare plan, Respondent has violated Section
8(a)(5) and (1) of the Act.
z See Iruanmarine Vavigation Corporation. and irtt Subsidiary. Internu-
rional lnrinul. Inc., 170 NL.RB 389, 390 (1968); see also Merrywhetrher
Optical Comrpany. upra.
: See ft 1, supru
1I 1 4
R()MAC S'()ORI'S'AR. INC8
8. By refusing on or about September 5, 1979,
and at all times thereafter to recognize and bargain
with the Union as the exclusive bargaining repre-
sentative of all the employees in the unit, Respon-
dent has violated Section 8(a)(5) and (1) of the Act.
9. By bargaining directly and individually with
employees concerning rates of pay, wages, benefits.
and other terms and conditions of employment
since or or about September 4, 1979, Respondent
has violated Section 8(a)(5) and (1) of the Act.
10. By unilaterally changing existing wage rates
and other terms and conditions of employment on
or about October 20, 1977, notwithstanding the
provisions of the collective-bargaining agreement,
Respondent has violated Section 8(a)(5) and (1) of
the Act.
I1. By failing to afford the Union an opportunity
to bargain about the effects on its employees of the
closing of its West New York plant, Respondent
has violated Section 8(a)(5) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Romac Sportswear, Inc., West New York, New
Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with Local
169, Amalgamated Clothing and Textile Workers
Union, AFL-CIO, concerning the effect on its em-
ployees of its decision to close its West New York
operations.
(b) Bargaining directly and individually with em-
ployees in the appropriate unit concerning rates of
pay, wages, benefits, and other terms and condi-
tions of employment.
(c) Offering and promising its employees im-
proved health insurance and increased work oppor-
tunities to refrain from becoming or remaining
members of the Union or giving any assistance or
support to it.
(d) Threatening its employees with loss of em-
ployment if they become or remain members of the
Union or give any assistance or support to it.
(e) Unilaterally changing terms and conditions of
employment by refusing a representative of the
Union access into the plant, failing to remit to the
Union the required October 1979 contributions to
the health and welfare fund, or changing existing
wage rates.
(f) In any like or related manner interfering with,
restraining, or coercing its employees in the exer-
cise of the rights guaranteed them under Section 7
of the Act:
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make whole its employees by paying those
employees whose employment was terminated
when Respondent closed its West New York oper-
ation normal wages plus interest for the period and
in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Upon request, bargain collectively with
Local 169, Amalgamated Clothing and Textile
Workers of America, AFL-CIO, with respect to
the effects on its employees of its decision to termi-
nate its operations, and reduce to writing any
agreement reached as result of such bargaining.
(c) Make whole its employees, in the manner set
forth in the section of this Decision entitled "The
Remedy," for Respondent's unlawful failure to
transmit the contributions to the Union's health and
welfare fund for October 1979, as required by its
collective-bargaining agreement with the Union.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, 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."4 to Local 169, Amalgamated
Clothing and Textile Workers Union, AFL-CIO,
and to all the employees who were employed at its
former place of business at 426 53d Street, West
New York, New Jersey, on the date in October
1979 when Respondent closed its West New York
operation. Copies of said notice, on forms provided
by the Regional Director for Region 22, after
being duly signed by Respondent's authorized rep-
resentative, shall be mailed immediately upon re-
ceipt thereof, as herein above directed.
(f) Notify the Regional Director for Region 22,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
I In the cent thia this Order is nforccd hb a Judgmrni iof .a Utniied
Stals iurt of Appcals. Ihec .ords I the niotict rcadlig "i'Pstd ic s
lrder if l i Nliollal I abor Rlionlls Board" shall read "'-slicd iPuri u
aii o Judgment of te Lnled Statcs Court l f Appeals entilerilng in
ordcr f the National I abthor Rclalilons loard
I IX
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL. NOT fail and refuse to bargain
with Local 169, Amalgamated Clothing and
Textile Workers Union, AFL-CIO, concern-
ing the effect on our employees of our deci-
sion to close our West New York operations.
WE WIl NOT bargain directly and individ-
ually with our employees concerning rates of
pay, wages, benefits, and other terms and con-
ditions of employement.
WE WILL NOT offer or promise our employ-
ees improved health insurance benefits or in-
creased work opportunities to refrain from be-
coming or remaining members of the Union or
giving any assistance or support to it.
WE WIi NOT threaten our employees with
loss of employment if they become or remain
members of the Union or give any assistance
or support to it.
WI WI.l.L NOT fail and refuse to remit to the
Union the required October 1979 contributions
to the health and welfare fund.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them under Section 7 of the Act.
WE WILL make our employees whole by
paying those employees who were terminated,
on the date in October 1979 when we closed
our West New York operations, normal wages
for a period specified by the National Labor
Relations Board, plus interest.
WE WILL, upon request, bargain collectively
with Local 169, Amalgamated Clothing and
Textile Workers Union, AFL-CIO, concern-
ing the effects on our employees of our deci-
sion to close our operations, and reduce to
writing any agreement reached as a result of
such bargaining.
WE WILL, make our employees whole by
transmitting our contribution to the Union's
health and welfare fund for October 1979 as
required by our collective-bargaining agree-
ment with Local 169.
ROMAC SPORTSWEAR, INC.
11H