Servco Automatic Machine Products Co.

National Labor Relations Board - Board Decisions

Nov 14, 2000

332 N.L.R.B. 119 (N.L.R.B. 2000)

332 NLRB No. 119
1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Servco Automatic Machine Products Company, Inc.
and Local 60568, Paper, Allied-Industrial,
Chemical and Energy Workers International
Union, AFL–CIO, CLC. Case 7–CA–43085
November 14, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
Upon a charge filed by the Union on May 25, 2000,
the General Counsel of the National Labor Relations
Board issued a complaint on July 27, 2000, against
Servco Automatic Machine Products Company, Inc., the
Respondent, alleging that it has violated Section 8(a)(1)
and (5) of the National Labor Relations Act. Although
properly served copies of the charge and complaint, the
Respondent failed to file an answer.
On September 25, 2000, the General Counsel filed a
Motion for Summary Judgment with the Board. On Sep-
tember 27, 2000, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated August 22, 2000, notified the Respondent
that unless an answer were received by August 31, 2000,
a Motion for Summary Judgment would be filed.
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 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 Inkster, Michigan,
has been engaged in the manufacture of tubing for the
automotive industry. During the calendar year ending
December 31, 1999, the Respondent, in conducting its
business operations, purchased and received at its
Inkster, Michigan facility goods valued in excess of
$50,000 directly from points outside the State of Michi-
gan. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent, the unit,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:

All full-time and regular part-time employees of the
Respondent, including leaders, automatic set-up, auto-
matic set-up trainees, automatic class A, automatic
class B, automatic class C, automatic helper, leader set-
up, set-up trainees, CNC class A, CNC class B, CNC
class C and CNC trainees; but excluding all executive
employees, professional employees, administrative
employees, office-clerical employees, plant protection
employees, foremen, guards and supervisors as defined
in the Act.

Since about 1980 and at all material times, the Union
has been the designated collective-bargaining representa-
tive of the unit and since then has been recognized as the
representative by the Respondent. This recognition has
been embodied in successive collective-bargaining
agreements, the most recent of which was effective from
June 20, 1994, through June 15, 1996. The latter con-
tract was mutually extended until November 28, 1999.
At all times since 1994, based on Section 9(a) of the
Act, the Union has been the exclusive collective-
bargaining representative for the unit.
The 1994–1996 collective-bargaining agreement pro-
vided, inter alia, in article X, “Vacation Pay,” and in arti-
cle XI, “Insurance,” that the Respondent provide certain
benefits on behalf of employees in the unit, including
vacation benefits, hospital/medical/dental insurance
benefits, and sick/personal day benefits.
Since about November 25, 1999, and continuing to
date, the Respondent has unilaterally and without notice
to the Union, failed and refused to provide the benefits
described above.
On about December 17, 1999, the Respondent ceased
business operations at its Inkster, Michigan facility and
permanently laid off all its employees in the unit.
The subjects set forth above related 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 took the actions described
above without notifying the Union and without affording
it a meaningful opportunity to bargain over the effects of
these actions on the unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing, and continues to fail
and refuse to bargain collectively with the exclusive col-
lective-bargaining representative of its employees, and
has thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5)
and Section 2(6) and (7) of the Act.
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, having
found that the Respondent violated Section 8(a)(5) and
(1) by failing to bargain with the Union concerning the
effects on the unit of the cessation of business operations
at its Inkster, Michigan facility, we shall order the Re-
spondent, on request, to bargain with the Union concern-
ing the effects of its decision to cease operations. As a
result of the Respondent’s unlawful failure to bargain in
good faith with the Union about the effects of its decision
to close its facility, the terminated employees have been
denied an opportunity to bargain 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, there-
fore, cannot serve as an adequate remedy for the unfair
labor practices committed.
Accordingly, we deem it necessary, in order to effec-
tuate the purposes of the Act, to require the Respondent
to bargain with the Union concerning the effects of clos-
ing its facility on its 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 practica-
ble 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 Re-
spondent to pay backpay to the terminated employees in
a manner similar to that required in Transmarine Naviga-
tion Corp ., 170 NLRB 389 (1968).
Thus, the Respondent shall pay its terminated employ-
ees 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
bargains to agreement with the Union on those subjects
pertaining to the effects of the closing of its facility on its
employees; (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 com-
mence negotiations within 5 business days after receipt
of the Respondent’s notice of its desire to bargain with
the Union;1 (4) the Union’s subsequent failure to bargain
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 Respondent terminated
its operations, to the time they secured equivalent em-
ployment elsewhere, or the date on which the Respon-
dent shall have offered to bargain in good faith, which-
ever occurs sooner; provided, however, 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 Respondent’s employ. Backpay
shall be based on earnings which the terminated employ-
ees would normally have received during the applicable
period, less any net interim earnings, and shall be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
In addition, having found that the Respondent has vio-
lated Section 8(a)(5) and (1) by failing since November
25, 1999, to maintain contractually required vacation
benefits, hospital/medical/dental insurance benefits, and
sick/personal day benefits for its unit employees, we
shall order the Respondent to make whole its unit em-
ployees for any loss of benefits suffered as a result of its
failure to maintain vacation benefits, hospital/medical/
dental insurance benefits, and sick/personal day benefits,
and to reimburse employees for any expenses ensuing
from its failure to maintain since November 25, 1999,
hospital/medical/dental insurance benefits, 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 Protec-
tion Service, 183 NLRB 682 (1970) enfd. mem. 444 F.2d
502 (6th Cir. 1971), with interest as prescribed in New
Horizons for the Retarded, supra.
In view of the fact that the Respondent’s facility is cur-
rently 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 in order to in-
form them of the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Servco Automatic Machine Products Com-
pany, Inc., Inkster, Michigan, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 60568, Paper, Al-
lied-Industrial, Chemical and Energy Workers Interna-
tional Union, AFL–CIO, CLC, which is the designated
exclusive bargaining representative of the Respondent’s
employees in an appropriate unit, over the effects of its
decision to close its Inkster, Michigan facility. The ap-
propriate unit consists of:

1 Melody Toyota, 325 NLRB 846 (1998).
SERVCO AUTOMATIC MACHINE PRODUCTS CO. 3
All full-time and regular part-time employees of the
Respondent, including leaders, automatic set-up, auto-
matic set-up trainees, automatic class A, automatic
class B, automatic class C, automatic helper, leader set-
up, set-up trainees, CNC class A, CNC class B, CNC
class C and CNC trainees; but excluding all executive
employees, professional employees, administrative
employees, office-clerical employees, plant protection
employees, foremen, guards and supervisors as defined
in the Act.

(b) Failing since November 25, 1999, to maintain con-
tractually required vacation benefits, hospi-
tal/medical/dental insurance benefits, and sick/personal
day benefits for its unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exe rcise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union concerning the
effects on the unit employees of the termination of the
Respondent’s business operations at its Inkster, Michigan
facility, and the termination of its unit employees and, if
an understanding is reached, embody it in a signed
agreement.
(b) Pay its former unit employees backpay at the rate
of their normal wages when last in the Respondent’s em-
ploy from 5 days after the date of this Decision and Or-
der until occurrence of the earliest of the following con-
ditions: (1) the date the Respondent bargains to agree-
ment with the Union on those subjects pertaining to the
effects of the closing of its facility on its employees; (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; (4) the
Union’s subsequent failure to bargain 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 Respondent terminated its operations,
to the time they secured equivalent employment els e-
where, or the date on which the Respondent shall have
offered to bargain in good faith, whichever occurs
sooner; provided, however, 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 Respondent’s employ, with interest, as set forth in
the remedy portion of this decision.
(c) Make unit employees whole for its failure since
November 25, 1999, to maintain vacation benefits, hospi-
tal/medical/dental insurance benefits, and sick/personal
day benefits, as set forth in the remedy portion of this
decision.
(d) 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 payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(e) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix” 2 to the Union and
to all former unit employees employed by the Respon-
dent at any time since November 25, 1999.
(f) 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 com-
ply.
Dated, Washington, D.C. November 14, 2000

John C. Truesdale, Chairman

Wilma B. Liebman, Member

Peter J. Hurtgen, Member

(SEAL) 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with Local 60568, Pa-
per, Allied-Industrial, Chemical and Energy Workers
International Union, AFL–CIO, CLC, which is the des-
ignated exclusive bargaining representative of our
employees in an appropriate unit, over the effects of our
decision to close our Inkster, Michigan facility. The ap-
propriate unit consists of:

All full-time and regular part-time employees of the
Employer, including leaders, automatic set-up, auto-
matic set-up trainees, automatic class A, automatic

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
class B, automatic class C, automatic helper, leader set-
up, set-up trainees, CNC class A, CNC class B, CNC
class C and CNC trainees; but excluding all executive
employees, professional employees, administrative
employees, office-clerical employees, plant protection
employees, foremen, guards and supervisors as defined
in the Act.

WE WILL NOT fail to maintain contractually required
vacation benefits, hospital/medical/dental insurance
benefits, and sick/personal day benefits for our unit em-
ployees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union concern-
ing the effects on our unit employees of the termination
of our business operations at our Inkster, Michigan facil-
ity, and the termination of our unit employees, and re-
duce to writing and execute any agreement reached as a
result of such bargaining.
WE WILL pay our former employees in the unit de-
scribed above who were employed at the time of our
closing their normal wages for the period of time set
forth in the decision underlying this notice to employees,
with interest.
WE WILL make our employees whole for our failure
since November 25, 1999, to maintain vacation benefits,
hospital/medical/dental insurance benefits, and sick/
personal day benefits, with interest.

SERVCO AUTOMATIC MACHINE PRODUCTS
COMPANY, INC.