Badger Packaging Corporation

National Labor Relations Board - Board Decisions

Jul 31, 2020

370 N.L.R.B. 1 (N.L.R.B. 2020)

370 NLRB No. 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.
Badger Packaging Corporation and United Steel, Pa-
per and Forestry, Rubber, Manufacturing, En-
ergy, Allied Industrial and Service Workers In-
ternational Union, AFL‒CIO‒CLC. Cases 18‒
CA‒248224, 18‒CA‒256426 and 18‒CA‒257051
July 31, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that Badger Packaging Corporation
(the Respondent) has failed to file an answer to the com-
plaint. Upon charges and amended charges filed by
United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers Interna-
tional Union, AFL‒CIO‒CLC (the International Union)
on behalf of its Local 2‒00598 (Local Union) (collectively
referred to as “the Union”) on various dates from Septem-
ber 13, 2019, through April 8, 2020, the General Counsel
issued a consolidated complaint and notice of hearing on
April 17, 2020, against the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the Act.1 The Respond-
ent failed to file an answer.
On May 19, 2020, the General Counsel filed with the
National Labor Relations Board a motion for default judg-
ment. Thereafter, on June 3, 2020, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be granted.
The Respondent filed no response. The allegations in the
motion are therefore undisputed.
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 stated that unless
an answer was received by May 1, 2020, the Board may
find, pursuant to a motion for default judgment, that the
allegations in the complaint are true. Further, the undis-
puted allegations in the General Counsel’s motion
1 The complaint states that the charge and first amended charge in
Case 18‒CA‒248224 were served on the Respondent on September 16
and September 20, 2020, respectively. We correct these inadvertent er-
rors to read 2019, as reflected on the respective affidavits of service.
2 The General Counsel’s motion states that on May 5, 2020, Subre-
gion 30 advised the Respondent’s president, James Anderson, that the
disclose that Subregion 30, by letter served via UPS, cer-
tified and regular mail, and email dated May 5, 2020, ad-
vised the Respondent that unless an answer was received
by May 12, 2020, the Region may pursue a default judg-
ment.2 Nevertheless, the Respondent failed to file an an-
swer.
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
motions to transfer case to and continue proceedings be-
fore the Board and for default judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a corpo-
ration with an office and place of business in West Bend,
Wisconsin (the Respondent’s facility) and has been en-
gaged in the manufacture of corrugated fiber board pack-
aging. In conducting its operations during the calendar
year ending December 31, 2019, the Respondent sold and
shipped from its West Bend, Wisconsin, facility goods
valued in excess of $50,000 directly to points outside the
State of Wisconsin.
We find that the Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
At all material times, the International Union and the
Local Union have been labor organizations within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
1. At all material times, James Anderson held the posi-
tion of the Respondent’s president and has been a super-
visor of the Respondent within the meaning of Section
2(11) of the Act and an agent of the Respondent within the
meaning of Section 2(13) of the Act.
2. The following employees of the Respondent (the
unit) constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act:
All regular full-time and regular part-time employees
employed by the Employer in the following classifica-
tions: Flexo Folder Glue Operator, Flexo Folder Glue
Helper, Printer/Slotter Operator, Printer/Slotter Helper,
Rotary Die Cutter Operator, Rotary Die Cutter Helper,
Respondent had until May 5, 2020 to file and serve its answer to the
complaint. However, the record indicates that the Subregion’s letter re-
quested that the Respondent file an answer by May 12, 2020. We correct
this inadvertent error.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Autoplaten Operator, Autoplaten Helper, Die Mounter,
Finishing Operator, Bander Operator, Shipping/Dis-
patch, Material Handler, Truck Driver, Maintenance,
Maintenance Helper, and Lead Man Adder.
3. At all material times, the Respondent has recognized
the Union as the exclusive collective-bargaining repre-
sentative of the unit. This recognition has been embodied
in successive collective-bargaining agreements, the most
recent of which was effective from September 1, 2017, to
August 31, 2019.
4. At all material times, based on Section 9(a) of the
Act, the Union has been the designated exclusive collec-
tive-bargaining representative of the unit.
5. The Union, on the dates and by the methods listed
below, requested that the Respondent bargain collectively
with the Union as the exclusive collective-bargaining rep-
resentative of the unit for a successor collective-bargain-
ing agreement:
May 15, 2019 by certified letter
July 2019 by voicemail
(on three unknown dates)
August 2, 2019 in person
August 8, 2019 by certified letter
August 26, 2019 by certified letter
6. Between May 15, 2019, and September 30, 2019, the
Respondent failed and refused to respond to the Union’s
requests to bargain.
7. Between May 15, 2019, and October 10, 2019, the
Respondent failed and refused to bargain with the Union
as the exclusive collective-bargaining representative of
the unit.
8. On October 10, 2019, the Respondent met and bar-
gained with the Union, resulting in a signed side agree-
ment. This agreement provided, among other things, that
the parties would extend the collective-bargaining agree-
ment and postpone negotiations for a successor collective-
bargaining agreement until March 2020, with an agree-
ment renewal set for June 2020. The agreement also pro-
vided that the Respondent would make whole 401(k) par-
ticipants by the end of November 2019.
9. The Union, on the dates and by the methods listed
below, requested that the Respondent bargain collectively
with the Union as the exclusive collective-bargaining rep-
resentative of the unit for a successor collective-bargain-
ing agreement, pursuant to the side agreement described
above:
February 26, 2020 by electronic mail
March 9, 2020 by electronic mail
10. Since February 26, 2020, the Respondent has failed
and refused to respond to and bargain with the Union as
the exclusive collective-bargaining representative of the
unit.
11. Since about April 2019, the Respondent unilater-
ally, and without agreement of the Union, has failed to re-
mit dues to the International Union despite having de-
ducted dues from employee paychecks pursuant to valid
dues checkoff authorizations.
12. Since at least June 2019, the Respondent unilater-
ally, and without agreement of the Union, has failed to:
(a) Deposit 401(k) contributions that were deducted
from employee paychecks;
(b) Match 50 percent of the first 5 percent of pay con-
tributed by employees to their 401(k) accounts; and
(c) Make a discretionary contribution of $300 per quar-
ter for employees who have worked a minimum of 250
hours during the quarter and have been employed by or
retained seniority with the Respondent on the last day of
the quarter.
13. The subjects set forth above in paragraphs 11 and
12 relate to wages, hours, and other terms and conditions
of employment of the unit and are mandatory subjects for
the purposes of collective bargaining.
14. The Respondent engaged in the conduct described
above in paragraphs 11 and 12 without prior notice to the
Union and without providing the Union an opportunity to
bargain with the Respondent with respect to this conduct.
15. About April 2019, the Respondent failed to con-
tinue in effect all the terms and conditions of the agree-
ment described above in paragraphs 2 through 4 by failing
to remit dues to the International Union despite having de-
ducted dues from employee paychecks pursuant to valid
dues checkoff authorizations.
16. About June 2019, the Respondent failed to continue
in effect all the terms and conditions of the agreement de-
scribed in paragraphs 2 through 4 by failing to:
(a) Deposit 401(k) contributions that were deducted
from employee paychecks;
(b) Match 50 percent of the first 5 percent of pay con-
tributed by employees to their 401(k) accounts; and
(c) Make a discretionary contribution of $300 per quar-
ter for employees who have worked a minimum of 250
hours during the quarter and have been employed by or
retained seniority with the Employer on the last day of the
quarter.
17. The terms and conditions of employment described
in paragraphs 15 and 16 are mandatory subjects for the
purposes of collective bargaining and the Respondent en-
gaged in the conduct without the Union’s consent.
18. Since about May 15, 2019, the Union has requested
in writing that the Respondent furnish the Union with the
BADGER PACKAGING CORP. 3
information set forth in Exhibit A of the complaint to pre-
pare for contract negotiations.3
19. Since about August 26, 2019, the Union has re-
quested in writing that the Respondent furnish the Union
with the following information: an explanation of the fre-
quency with which dues are submitted; the last transaction
in which dues were submitted with some type of receipt or
verification; a list of all employees who participate in the
Company 401(k) plan; how much each employee contrib-
utes to the 401(k) plan; how much the company contrib-
utes to each employee 401(k) plan; and when the last con-
tribution was made to each 401(k) plan participant.
20. The information requested by the Union, as de-
scribed above in paragraphs 18 and 19, is necessary for,
and relevant to, the Union’s performance of its duties as
the exclusive collective-bargaining representative of the
unit.
21. Since about May 15, 2019, the Respondent, by
President James Anderson, has failed and refused to fur-
nish the Union with the information requested by it.
CONCLUSIONS OF LAW
By the conduct described above in paragraphs 5 through
14 and 18 through 21, the Respondent has been failing and
refusing to bargain collectively and in good faith with the
exclusive collective-bargaining representative of its em-
ployees in violation of Section 8(a)(5) and (1) of the Act.
By the conduct described above in paragraphs 15
through 17, the Respondent has been failing and refusing
to bargain collectively and in good faith with the exclusive
collective-bargaining representative of its employees
within the meaning of Section 8(d) of the Act in violation
of Section 8(a)(5) and (1) of the Act.
The Respondent’s unfair labor practices described
above affect commerce 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, having
found that the Respondent violated Section 8(a)(5) and (1)
by failing and refusing to bargain collectively and in good
faith with the Union as the exclusive collective-bargaining
representative of the employees in the unit by failing and
refusing to respond to the Union’s requests to bargain and
by failing and refusing to bargain with the Union, we shall
order the Respondent, on request, to meet and bargain
3 Exhibit A consists of a standard form entitled “Contract Negotiation
Information Request.” The form seeks data concerning numbers, hours,
and wages of hourly employees, as well as information about the cover-
age and costs of their insurance, pension, and 401(k) benefits.
collectively and in good faith with the Union as the exclu-
sive collective-bargaining representative of the unit, and,
if an understanding is reached, to embody the understand-
ing in a signed agreement.
Having found that the Respondent has violated Section
8(a)(5) and (1) by making unilateral changes to the terms
and conditions of employment of bargaining unit employ-
ees, we shall order the Respondent to rescind those
changes upon request. Having found that the Respondent
unilaterally failed to remit dues to the International Union,
despite having deducted the dues from employee
paychecks pursuant to valid dues checkoff authorizations,
we shall order the Respondent to make the Union whole
for all dues that would have been paid but for the Respond-
ent’s unlawful conduct by remitting to the International
Union the dues deducted from about April 2019 until the
expiration of the collective-bargaining agreement as ex-
tended4 and to make employees whole for any expenses
ensuing from the Respondent’s failure to make the remit-
tances as set forth in Kraft Plumbing & Heating, 252
NLRB 891, 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th
Cir.1981), the amounts to be computed in the manner set
forth in Ogle Protection Service, 183 NLRB 682 (1970),
with interest as prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). We shall fur-
ther order the Respondent to return to employees any dues
deducted but not remitted to the Union after the expiration
of the extended contract, with the amounts and interest
calculated in the manner set forth above.5
Additionally, having found that the Respondent failed
to continue in effect all the terms and conditions of the
2017‒2019 collective-bargaining agreement in violation
of Section 8(a)(5) and (1) by failing since June 2019 to
deposit 401(k) contributions that were deducted from em-
ployee paychecks; to match 50 percent of the first 5 per-
cent of pay contributed by employees to their 401(k) ac-
counts; and to make a discretionary contribution of $300
per quarter for employees who have worked a minimum
of 250 hours during the quarter and have been employed
by or retained seniority with the Respondent on the last
day of the quarter, as required by the 2017–2019 collec-
tive-bargaining agreement, we shall order the Respondent
to rescind its unlawful actions and to make whole its unit
employees by making all such delinquent fund contribu-
tions on behalf of unit employees that have not been made
since June 2019, including any additional amounts due the
funds in accordance with Merryweather Optical Co., 240
4 See Valley Hospital Medical Center, Inc. d/b/a Valley Hospital
Medical Center, 368 NLRB No. 139 (2019).
5 See Betteroads Asphalt, LLC, 369 NLRB No. 114 (2020).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
NLRB 1213, 1216 fn. 7 (1979). The Respondent shall also
reimburse the employees for any expenses ensuing from
its failure to make the required contributions, as set forth
in Kraft Plumbing & Heating, supra, the amounts to be
computed in the manner set forth in Ogle Protection Ser-
vice, supra, with interest as prescribed in New Horizons,
supra, compounded daily as prescribed in Kentucky River
Medical Center, supra.
We shall order the Respondent to compensate the unit
employees for any adverse tax consequences of receiving
lump-sum backpay awards and to file a report with the Re-
gional Director for Region 18 allocating the backpay
award to the appropriate calendar years for each em-
ployee, in accordance with AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016).
Finally, having found that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing and refusing to furnish the
Union with relevant and necessary information, we shall
order the Respondent to furnish to the Union, in a timely
manner, the information requested on May 15 and August
26, 2019.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Badger Packaging Corporation, West Bend,
Wisconsin, its officers, agents, successors, and assigns
shall:
1. Cease and desist from
(a) Failing and refusing to bargain with United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy, Al-
lied Industrial and Service Workers International Union,
AFL–CIO, CLC, on behalf of its Local 2–00598, as the
exclusive collective-bargaining representative of the em-
ployees in the bargaining unit.
(b) Unilaterally changing the terms and conditions of
employment of its unit employees.
(c) Failing and refusing to continue in effect all the
terms and conditions of the collective-bargaining agree-
ment by failing to make required benefit fund contribu-
tions.
(d) Refusing to bargain collectively with the Union by
failing and refusing to furnish the Union with requested
information that is relevant and necessary to the Union’s
performance of its functions as the exclusive collective-
bargaining representative of the Respondent’s unit em-
ployees.
(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) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All regular full-time and regular part-time employees
employed by the Employer in the following classifica-
tions: Flexo Folder Glue Operator, Flexo Folder Glue
Helper, Printer/Slotter Operator, Printer/Slotter Helper,
Rotary Die Cutter Operator, Rotary Die Cutter Helper,
Autoplaten Operator, Autoplaten Helper, Die Mounter,
Finishing Operator, Bander Operator, Shipping/Dis-
patch, Material Handler, Truck Driver, Maintenance,
Maintenance Helper, and Lead Man Adder.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of bargain-
ing unit employees, notify and, on request, bargain with
the Union as the exclusive collective-bargaining repre-
sentative of unit employees.
(c) Rescind the changes in the terms and conditions of
employment of its unit employees that were unilaterally
implemented about April and June 2019.
(d) Continue in effect all the terms and conditions of
employment contained in its collective-bargaining agree-
ment effective September 1, 2017, to August 31, 2019 as
extended.
(e) Make the Union whole by remitting to the Interna-
tional Union dues that were deducted from unit employ-
ees’ paychecks but not remitted from April 2019 until the
expiration of the collective-bargaining agreement as ex-
tended, with interest, in the manner set forth in the remedy
section of this decision.
(f) Return to employees any dues deducted but not re-
mitted to the Union after the expiration of the extended
contract, with interest, in the manner set forth in the rem-
edy section of this decision.
(g) Make whole its unit employees by making all con-
tractually required benefit fund contributions that have not
been made since June 2019, pursuant to the 2017‒2019
collective-bargaining agreement as extended, with inter-
est, in the manner set forth in the remedy section of this
decision.
(h) Make unit employees whole for any loss of earnings
and other benefits suffered as a result of the Respondent’s
failure to remit dues and make benefit fund contributions,
with interest, in the manner set forth in the remedy section
of this decision.
(i) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 18,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for each
employee.
BADGER PACKAGING CORP. 5
(j) Furnish to the Union in a timely manner the relevant
and necessary information requested on May 15 and Au-
gust 26, 2019.
(k) 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, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(l) Post at its West Bend, Wisconsin facility copies of
the attached notice marked “Appendix.”6 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 18, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(m) Within 21 days after service by the Region, file
with the Regional Director for Region 18 a sworn certifi-
cation 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. July 31, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
6 If the facility involved in these proceedings is open and accessible
to a substantial complement of employees and members, the notices must
be posted within 14 days after service by the Region. If the facility in-
volved in these proceedings is closed due to the Coronavirus pandemic,
the notices must be posted within 14 days after the facility reopens and a
substantial complement of employees have regained access, and the no-
tices may not be posted until a substantial complement of employees
have regained access. Any delay in the physical posting of paper notices
(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 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 with United
Steel, Paper and Forestry, Rubber, Manufacturing, En-
ergy, Allied Industrial and Service Workers International
Union, AFL–CIO, CLC on behalf of its Local 2‒00598
(collectively “the Union”), as the exclusive collective-bar-
gaining representative of our employees in the bargaining
unit.
WE WILL NOT change your terms and conditions of em-
ployment without first notifying the Union and giving it
an opportunity to bargain.
WE WILL NOT fail and refuse to continue in effect all the
terms and conditions of the collective-bargaining agree-
ment by failing to make required benefit fund contribu-
tions.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the exclusive collective-
bargaining representative of our unit employees.
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, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our
also applies to the electronic distribution of the notice if the Respondent
customarily communicates with its employees by electronic means. 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 Rela-
tions Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed
agreement:
All regular full-time and regular part-time employees
employed by us in the following classifications: Flexo
Folder Glue Operator, Flexo Folder Glue Helper,
Printer/Slotter Operator, Printer/Slotter Helper, Rotary
Die Cutter Operator, Rotary Die Cutter Helper, Au-
toplaten Operator, Autoplaten Helper, Die Mounter,
Finishing Operator, Bander Operator, Shipping/Dis-
patch, Material Handler, Truck Driver, Maintenance,
Maintenance Helper, and Lead Man Adder.
WE WILL, before implementing any changes in wages,
hours, and other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the bargaining unit.
WE WILL rescind the changes in your terms and condi-
tions of employment that were implemented about April
and June 2019.
WE WILL continue in effect all the terms and conditions
of employment contained in the collective-bargaining
agreement effective September 1, 2017, to August 31,
2019 as extended.
WE WILL remit to the International Union dues that were
deducted from your paychecks pursuant to valid dues
checkoff authorizations and that have not been remitted
from April 2019 until the expiration of our collective-bar-
gaining agreement as extended, with interest.
WE WILL return to you union dues that we deducted
from your paychecks but did not remit to the Union after
the collective-bargaining agreement as extended expired,
with interest.
WE WILL make you whole for your loss of earnings and
other benefits suffered as a result of our unlawful cessa-
tion of dues remittance to the Union and contractually re-
quired benefit contributions, with interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for
Region 18, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar
years for each employee.
WE WILL furnish to the Union in a timely manner the
relevant and necessary information requested on May 15
and August 26, 2019.
BADGER PACKAGING CORPORATION
The Board’s decision can be found at
www.nlrb.gov/case/18-CA-248224 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.