Art Iron, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 2019

367 NLRB No. 108 (N.L.R.B. 2019)

367 NLRB No. 108
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.
Art Iron Inc. and International Association of Bridge,
Structural, Ornamental & Reinforcing Iron
Workers, AFL–CIO, Local 55-S. Case 08–CA–
219427
March 21, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that Art Iron, Inc. (the Respondent) has
failed to file an answer to the complaint. Upon a charge
filed by the International Association of Bridge, Struc-
tural, Ornamental & Reinforcing Iron Workers, AFL–
CIO, Local 55-S (the Union) on May 1, 2018, the General
Counsel issued a complaint on October 30, 2018, against
the Respondent, alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations Act. Alt-
hough properly served copies of the charge and complaint,
the Respondent failed to file an answer.
On December 19, 2018, the General Counsel filed a
Motion for Default Judgment with the Board. On Decem-
ber 27, 2018, 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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a 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 states that an an-
swer must be received on or before November 13, 2018,
and that if no answer is filed, the Board may find, pursuant
to a motion for default judgment, that the allegations in the
complaint are true.
The General Counsel’s Motion for Default Judgment
indicates that the complaint was served by certified mail
on the Respondent at both its business address and at the
residential address of the president, Robert P. Schlatter,
and copies of the certified mail receipt and the United

1 The Motion for Default Judgment also states that on October 26 and
29, 2018, counsel for the General Counsel telephoned Mr. Schlatter and
left voicemail messages requesting that Mr. Schlatter return the calls and
that Mr. Schlatter did not respond.
States Postal Service tracking confirmation reflect that the
Respondent accepted service of each certified mailing on
November 2 and 7, 2018, respectively.1 Further, the mo-
tion discloses that, by certified letter dated November 20,
2018, the Region notified the Respondent that unless an
answer was received by November 28, 2018, a motion for
default judgment would be filed.2 The Respondent neither
filed an answer nor requested an extension of time to file
an answer.
In the absence of good cause being shown for the failure
to file an answer, we deem the allegations in the complaint
to be admitted as true, and we grant the General Counsel’s
Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Ohio corpora-
tion with an office and place of business in Toledo, Ohio
(the “facility”), has been engaged in the fabrication of
structural steel. During the calendar year ending Decem-
ber 31, 2017, the Respondent, in conducting its business
operations described above, sold and shipped from its fa-
cility in Toledo, Ohio goods valued in excess of $50,000
directly to points outside the State of Ohio. 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 organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Robert Schlatter held the position
of owner and president, and has been a supervisor of the
Respondent within the meaning of Section 2(11) and an
agent of the Respondent within the meaning of Section
2(13) of the Act.
The following employees of the Respondent (the Unit)
constitute an appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees employed
by the [Respondent] at its facility located in Toledo,
Ohio, but excluding all office and clerical employees,
draftsmen, engineering employees, watchmen, guards,
professional employees, supervisors, and employees en-
gaged in erection, installation, or construction work.
2 A copy of the United States Postal Service tracking confirmation
reflects that the Respondent accepted service of the certified mailing on
November 23, 2018.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since at least 1988 and at all material times, the Re-
spondent has recognized the Union as the exclusive col-
lective-bargaining representative of the Unit, and this
recognition has been embodied in the parties’ successive
collective-bargaining agreements, the most recent of
which was effective from September 11, 2015, through
September 10, 2018. Since at least 1988 and at all material
times, based on Section 9(a) of the Act, the Union has been
the exclusive collective-bargaining representative of the
Unit.
On about December 1, 2017, the Respondent has ceased
operations at the facility.
Since about March 9, 2018, the Union has requested, in
writing, that the Respondent bargain over the effects of the
decision to lay off the Unit and the cessation of operations
and business restructuring.
Since about March 9, 2018, the Union has also re-
quested that the Respondent provide the following infor-
mation:
1. The contract between [the Respondent] and G2000;
2. A description of the services performed for [the Re-
spondent] by G2000;
3. An inventory of all of [the Respondent’s] equipment
as of December 1, 2017;
4. A list of all [the Respondent’s] equipment that has
been sold from December 1, 2017 to the present, the pur-
chaser of each piece of equipment, and the amount of
money each piece of equipment was sold for;
5. A list of equipment still owned by [the Respondent];
6. A description of [the Respondent’s] plans for wind-
ing-up the business or any other action it intends relative
to [the Respondent];
7. Any documents relating to bids [the Respondent] has
made for securing work from December 1, 2017 to the
present; and
8. Any documents/information relating to plans for fu-
ture operations of [the Respondent] or any other busi-
ness you intend to be involved with. If you intend on
being involved in another business, please provide the
name of the business and the capacity in which you plan
to serve that business.
The above requested information is necessary for and
relevant to the Union’s performance of its duties as the
collective-bargaining representative of the Unit. How-
ever, since about March 9, 2018, the Respondent has

3 It is well established that a respondent’s asserted cessation of oper-
ations does not excuse it from filing an answer to a complaint. See, e.g.,
OK Toilet & Towel Supply, Inc., 339 NLRB 1100, 1100–1101 (2003);
Dong-A Daily North America, 332 NLRB 15, 1–16 (2000); Holt
failed and refused to furnish the Union with the above de-
scribed information.3
By engaging in the conduct described above, the Re-
spondent failed and refused to furnish the Union with the
information necessary for it to engage in effective repre-
sentation of the Unit with respect to the Respondent’s ces-
sation of operations and restructuring.
By the conduct described above, the Respondent has
failed and refused to bargain collectively and in good faith
with the Union as the exclusive collective-bargaining rep-
resentative of the Unit in violation of Section 8(a)(5) and
(1) of the Act.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
failed and refused to furnish the Union with requested in-
formation that is necessary for and relevant to the Union’s
performance of its function as the exclusive collective-
bargaining representative of the Unit and has been failing
and refusing to bargain collectively and in good faith with
the Union in violation 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.
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 unlawful failure and refusal to bargain
with the Union since December 1, 2017, about the effects
of the cessation of the Respondent’s business we shall or-
der the Respondent to bargain with the Union, on request,
about the effects of the closing. As a result of the Re-
spondent’s unlawful conduct, however, the unit employ-
ees have been denied an opportunity to bargain through
their collective-bargaining representative. Meaningful
bargaining cannot be assured until some measure of eco-
nomic strength is restored to the Union. A bargaining or-
der alone, therefore, cannot serve as an adequate remedy
for the unfair labor practices committed.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to make
whole the employees for losses suffered as a result of the
violation and to recreate in some practicable manner a sit-
uation in which the parties’ bargaining position is not
Plastering, Inc., 317 NLRB 451, 451 (1995) (respondent was not ex-
cused from filing an answer to compliance specification, even though the
respondent notified the Board it had “ceased operations and liquidated
the plant facilities”).
ART IRON, INC. 3
entirely devoid of economic consequences for the Re-
spondent. We shall do so by ordering the Respondent to
pay backpay to the unit employees in a manner similar to
that required in Transmarine Navigation Corp., 170
NLRB 389 (1968), as clarified by Melody Toyota, 325
NLRB 846 (1998).4
Thus, the Respondent shall pay its unit employees back-
pay at the rate of their normal wages when last in the Re-
spondent’s employ from 5 days after the date of this De-
cision and Order until the 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 on the unit employees of the cessation of
business; (2) a bona fide impasse in bargaining; (3) the
failure of the Union to request bargaining within 5 busi-
ness days after receipt of this Decision and Order, or to
commence negotiations within 5 business days after re-
ceipt of the Respondent’s notice of its desire to bargain
with the Union; or (4) the subsequent failure of the Union
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 operations to the
time they secured equivalent employment elsewhere, or
the date on which the Respondent shall have offered to
bargain in good faith, which 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 earnings that the unit employees would
normally have received during the applicable period, less
any net interim earnings, and shall be computed in accord-
ance with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest, as pre-
scribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). Additionally, we shall order
the Respondent to compensate unit employees for any ad-
verse tax consequences of receiving lump-sum backpay
awards and to file a report with the Regional Director for
Region 8 allocating backpay to the appropriate calendar
years for each employee within 21 days of the date the
amount of backpay is fixed, either by agreement or Board
order, in accordance with AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016).
Further, having found that the Respondent has failed to
provide the Union information that is relevant and neces-
sary to its role as the exclusive collective-bargaining rep-
resentative of the unit employees that the Union requested

4 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
on or about March 9, 2019, we shall order the Respondent
to furnish the Union with the information requested.
Finally, because the Respondent has ceased operations
at the facility, we shall order the Respondent to mail a
copy of the attached notice to the Union and to the last
known addresses of its unit employees to inform them of
the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Art Iron, Inc., Toledo, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from (a) Failing and refusing to
bargain collectively and in good faith with International
Association of Bridge, Structural, Ornamental & Rein-
forcing Iron Workers, AFL–CIO, Local 55-S (the Union)
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit about the
effects of its decision to cease operations:
All production and maintenance employees employed
by the [Respondent] at its facility located in Toledo,
Ohio, but excluding all office and clerical employees,
draftsmen, engineering employees, watchmen, guards,
professional employees, supervisors, and employees en-
gaged in erection, installation, or construction work.
(b) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining rep-
resentative of the Respondent’s unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights listed above.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union over the effects
of the decision to lay off all bargaining unit employees,
cessation of operations, and business restructuring, and re-
duce to writing and sign any agreement reached as a result
of such bargaining.
(b) Provide to the Union the information it requested on
or about March 9, 2018.
(c) Pay unit employees their normal wages for the pe-
riod and in the manner set forth in the remedy section of
this Decision and Order.
(d) Compensate any employee who receives backpay
under this Order for adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file a report
with the Regional Director for Region 8, within 21 days
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the date the amount of backpay is fixed, either by agree-
ment or Board order, a report allocating the backpay
awards to the appropriate calendar years for each em-
ployee.
(e) 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 for examination and cop-
ying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due un-
der the terms of this Order.
(f) Within 14 days after service by the Region, duplicate
and mail at its own expense, after being signed by the Re-
spondent’s authorized representative, copies of the at-
tached notice marked “Appendix” to the Union and to all
unit employees who were employed by the Respondent on
December 1, 2017.5
(g) Within 21 days after service by the Region, file with
the Regional Director for Region 8 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. March 21, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

5 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 National
Labor Relations Board” shall read “Mailed Pursuant to a Judgment of the
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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
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 ac-
tivities.
WE WILL NOT fail and refuse to bargain collectively and
in good faith with International Association of Bridge,
Structural, Ornamental & Reinforcing Iron Workers,
AFL–CIO, Local 55-S by failing or refusing to bargain
over the effects of our decision to cease operations, and to
provide the Union with requested information that is nec-
essary for and relevant to the Union’s performance of its
duties as the exclusive collective-bargaining representa-
tive of our employees in the following appropriate unit:
All production and maintenance employees employed
by us at our facility located in Toledo, Ohio, but exclud-
ing all office and clerical employees, draftsmen, engi-
neering employees, watchmen, guards, professional em-
ployees, supervisors, and employees engaged in erec-
tion, installation, or construction work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information it requested since March 9, 2018.
WE WILL, on request, bargain with the Union over the
effects of the decision to lay off all bargaining unit em-
ployees, cessation of operations, and business restructur-
ing.
WE WILL pay unit employees laid off when we ceased
operations in December 2017 their normal wages for the
period and in the manner set forth in the remedy section
of this Decision and Order of the National Labor Relations
Board, with interest.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
ART IRON, INC. 5
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Direc-
tor for Region 8, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar year for each employee.
ART IRON, INC.
The Board’s decision can be found at
www.nlrb.gov/case/08-CA-219427 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.