Champaign Builders Supply Company

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1382 (N.L.R.B. 2014)

1382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Champaign Builders Supply Company and Teamsters
Local Union No. 26. Case 25–CA–114095
December 16, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On August 7, 2014, Administrative Law Judge Melissa
M. Olivero issued the attached decision. The Respond-
ent filed exceptions with supporting argument, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
1 At several points in her decision, the judge used language that
could suggest that the Respondent had an obligation to bargain over its
decision to close its business. There is no such complaint allegation,
however. Moreover, read in its entirety, the judge’s decision is clear
that she found that the Respondent had an obligation to bargain only
over the effects of its decision to close, and that the Respondent failed
to satisfy that obligation. In affirming the judge’s findings in both
respects, we agree with her that the Respondent’s effects bargaining
obligation is to bargain to impasse or agreement. See Dallas & Mavis
Specialized Carrier Co., 346 NLRB 253, 257 (2006). We do not inter-
pret the judge’s decision as our concurring colleague does and, there-
fore, do not agree with his suggested corrections and clarifications to
the decision.
Member Miscimarra concurs in the majority’s adoption of the
judge’s decision, subject to the qualification described above, and he
believes the judge’s decision warrants correction or clarification in
several additional respects. First, Respondent’s failure to alter its plans
regarding the shutdown of its facility is not evidence of an effects-
bargaining violation, since a premise of effects bargaining is often that
the employer has already made an underlying decision, and effects
bargaining does not require any reconsideration of that decision. First
National Maintenance Corp. v NLRB, 452 U.S. 666, 681–682 (1981)
(partial closing “decision” is not a mandatory subject of bargaining
even though meaningful bargaining over the “effects” is required).
Second, contrary to the judge’s statement that “offering to discuss a
matter with a union does not equate to good-faith bargaining,” Member
Miscimarra believes that the word “discuss” in most circumstances
would be intended and understood to mean bargaining, and the parties’
conduct itself controls whether the parties have satisfied the require-
ments of Sec. 8(a)(5) or 8(b)(3). In the case the judge cited for the
above-quoted proposition, Mi Pueblo Foods, 360 NLRB No. 116
(2014), the employer offered to “discuss” its plans with the union,
while also making it clear that it was not bargaining and was instead
contesting the union’s certification. Id., slip op. at 17-18; see also
International Union, UAW v. NLRB (National Metalcrafters, Inc.), 802
F.2d 969, 973–975 (7th Cir. 1986) (agreement provided that the em-
ployer would “discuss” relocations and “negotiate” regarding their
effects, and court remands case to Board for an evaluation of whether
the parties’ bargaining history indicated the words “discuss” and “nego-
tiate” were intended to have identical or different meanings). Third,
Member Miscimarra agrees that the Respondent’s failure to engage in
effects bargaining here was not excused or justified by economic exi-
gency. However, the judge’s decision is incorrect to the extent it sug-
gests “no case law” supports the proposition that bargaining may some-
times be excused by “economic necessity.” See, e.g., Bottom Line En-
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Champaign Builders Supply Company,
Champaign, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing to timely notify the Union, Teamsters Local
Union No. 26, and afford it an opportunity to bargain
over the effects of the decision to close its business in
September 2013.
(b) 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 the effects of
the decision to close its business and, if an understanding
is reached, embody the understanding in a signed agree-
ment:
All truck drivers, truck driver helpers, warehousemen,
general yardmen, end loader drivers and mechanics
employed by Champaign Builders Supply Company;
but excluding office clerical employees, plant clerical
employees, guards, professional employees and super-
visors as defined in the Act.
(b) Pay its former employees in the unit described
above their normal wages when in the Respondent’s em-
ploy from 5 days after the date of this Decision and Or-
der until the occurrence of the earliest of the following
conditions: (1) the Respondent bargains to agreement
with the Union about the effects of the decision to close
its business; (2) the parties reach a bona fide impasse in
terprises, 302 NLRB 373, 374 (1991), enfd. 15 F.3d 1087 (9th Cir.
1994) (noting the Board “has recognized” a limited “exception” to the
normal bargaining requirements “when economic exigencies compel
prompt action”) (citations omitted); RBE Electronics of S.D., Inc., 320
NLRB 80, 81–82 (1995) (certain extraordinary “compelling economic
considerations” have been “long recognized as excusing bargaining
entirely,” and “other economic exigencies, although not sufficiently
compelling to excuse bargaining altogether,” may permit implementa-
tion without an overall impasse where “time is of the essence and . . .
demand[s] prompt action” and where “the exigency was caused by
external events, was beyond the employer’s control, or was not reason-
ably foreseeable”) (citations omitted).
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language. In adopting paragraph 2(c) of the
Order, we rely on Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB 101 (2014). We shall substitute a new notice to conform to the
violations found and to the Order as modified.
361 NLRB No. 153

CHAMPAIGN BUILDERS SUPPLY CO. 1383
bargaining; (3) the Union fails to request bargaining
within 5 days after the receipt of this Decision and Order,
or to commence negotiations within 5 days after receipt
of the Respondent’s notice of its desire to bargain with
the Union; or (4) the Union subsequently fails to bargain
in good faith; but in no event shall the sum paid to any of
the employees exceed the amount he or she would have
earned as wages from the date in September 2013 when
the employee was terminated as a result of Respondent
closing its business, to the time he or she secured equiva-
lent employment elsewhere, 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 affected employees
would have earned for a 2-week period at the rate of their
normal wages, with interest, as set forth in the remedy
portion of this Decision and Order.
(c) Compensate former unit employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for each employee.
(d) 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, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, the Re-
spondent shall duplicate and mail, at its own expense and
after being signed by the Respondent’s authorized repre-
sentative, copies of the attached notice marked “Appen-
dix”3 to the Union and to all unit employees who were
employed by the Respondent at any time since Septem-
ber 1, 2013.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 25 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.
3 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 Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 vio-
lated Federal labor law and has ordered us to mail 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
activities.

WE WILL NOT fail to timely notify the Union, Team-
sters Local Union No. 26, and afford it an opportunity to
bargain over the effects of the decision to close our busi-
ness.
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
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
the effects of the decision to close our business and, if an
understanding is reached, embody the understanding in a
signed agreement:
All truck drivers, truck driver helpers, warehousemen,
general yardmen, end loader drivers and mechanics
employed by Champaign Builders Supply Company;
but excluding office clerical employees, plant clerical
employees, guards, professional employees and super-
visors as defined in the Act.
WE WILL pay former unit employees their normal wag-
es for a period of time set forth in the Decision and Order
of the National Labor Relations Board, with interest.
WE WILL compensate former unit employees for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file a report with the So-
cial Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
CHAMPAIGN BUILDERS SUPPLY CO.

The Administrative Law Judge’s decision can be found
at www.nlrb.gov/case/25–CA–114095 or by using the
QR code below. Alternatively, you can obtain a copy of

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1384
the decision from the Executive Secretary, National La-
bor Relations Board, 1099 14th Street, N.W., Washing-
ton, D.C. 20570, or by calling (202) 273-1940.

Katherine E. Miller, Esq. and Debra Stefanik, Esq., for the
General Counsel.
David L. Miller, for the Respondent.
DECISION
STATEMENT OF THE CASE
MELISSA M. OLIVERO, Administrative Law Judge. This case
was tried in Peoria, Illinois, on March 24, 2014. Teamsters
Local Union No. 26 (the Union) filed the charge on September
24, 2013, and the General Counsel issued the complaint on
January 31, 2014.1 (GC Exh. 1(a), (b), (d).) The complaint
alleges that Champaign Builders Supply Company (Respond-
ent) violated Section 8(a)(5) and (1) of the Act by failing and
refusing to bargain with the Union over the effects of Respond-
ent’s decision to close its business. (GC Exh. 1(d).) Respond-
ent timely filed an answer to the complaint denying the alleged
violation of the Act. (GC Exh. 1(h).) The parties were given a
full opportunity to participate, to introduce relevant evidence,
to examine and cross-examine witnesses, and to file briefs. On
the entire record,2 including my own observation of the de-
meanor of the witnesses,3 and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, engaged in the manufacture and
nonretail sale of concrete and other building materials at its
facility in Champaign, Illinois, where it annually purchased and
received goods valued in excess of $50,000 directly from points
outside the State of Illinois. Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning of
1 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for Respondent’s Exhibit; “GC Exh.” for General
Counsel’s Exhibit; “R. Br.” for Respondent’s Brief; and “GC Br.” for
the General Counsel’s Brief. The Charging Party did not file a brief.
2 I make the following correction to the transcript: Tr. 21, L. 22:
“contractor” should be “contract.”
3 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather on my review and
consideration of the entire record for this case. I further note that my
findings of fact encompass the credible testimony and evidence pre-
sented at trial, as well as logical inferences drawn therefrom.
Section 2(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
A. Overview of Respondent’s Operations and Management
Structure
Respondent was a ready-mix concrete supplier to the con-
struction industry, until it closed its business in September
2013.4 (Tr. 16.) At all relevant times, Marsha Elliott was Re-
spondent’s director. At the hearing Respondent admitted, and I
find, that Marsha Elliott was a supervisor of Respondent within
the meaning of Section 2(11) of the Act and an agent of Re-
spondent within the meaning of Section 2(13) of the Act. (Tr.
10–12.) Gloria Blager, Marsha Elliott’s mother, was Respond-
ent’s owner. (Tr. 13–14.) Lindsey Elliott, Marsha Elliott’s
daughter, was also employed by Respondent as a bookkeeper.5
(Tr. 21.)
At all relevant times, Curtis Eichen was Respondent’s sales
manager and batchman. (Tr. 16.) As sales manager, Eichen set
up accounts, visited customers, and generated business for Re-
spondent. (Tr. 17.) As batchman, Eichen was responsible for
the production of concrete. (Tr. 17.) Eichen’s other duties
included dispatching, picking up mail, and making bank depos-
its. (Tr. 17, 31.)
B. Respondent’s Collective-Bargaining Relationship with the
Union
Since 1968, the Union had been the exclusive collective-
bargaining representative of a unit of Respondent’s employees.
(GC Exh. 1(i).) This unit consisted of truck drivers, truck driv-
er helpers, warehousemen, general yardmen, loader drivers, and
mechanics. (Id.) Respondent’s most recent collective-
bargaining agreement with the Union was effective from Sep-
tember 10, 2011, to September 9, 2014. (GC Exh. 3.) Marsha
Elliott signed this collective-bargaining agreement on behalf of
Respondent. (Id.)
David Marxmiller has served as a vice president, business
representative, and organizer for the Union since April 2012.
(Tr. 36–37.) Marxmiller’s uncontroverted testimony estab-
lished that Marsha Elliott was his only point of contact with
Respondent regarding issues such as seniority, overtime, and
discipline. (Tr. 39.) By way of example, Marxmiller testified
that he spoke with Marsha Elliott over the phone in August to
discuss the discharge of a unit employee. (Tr. 39.) The em-
ployee’s termination letter was signed by Marsha Elliott. (GC
Exh. 8.) Marxmiller subsequently filed a grievance over this
termination and addressed it to Marsha Elliott. (GC Exh. 9; Tr.
41.) Eichen received and signed for this grievance on behalf of
Respondent on September 5.6 (GC Exh. 9.)
4 All dates are in 2013 unless otherwise indicated.
5 Marsha Elliot, Gloria Blager, and Lindsey Elliott were not called as
witnesses at the hearing.
6 Eichen’s uncontradicted testimony establishes that Marsha Elliott
specifically authorized him to receive mail on behalf of Respondent.
(Tr. 28.)

CHAMPAIGN BUILDERS SUPPLY CO. 1385
C. Respondent’s Discussion of Its Decision to Close with the
Union
Sometime in 2013, Marxmiller began hearing rumors that
Respondent’s business might close. (Tr. 41–42.) Marxmiller
tried to call Marsha Elliott about these rumors, but was unable
to reach her. (Tr. 42.)
On August 21, Marxmiller went to Respondent’s office and
met with Marsha Elliott. (Tr. 42.) The meeting took place in
the front lobby area of Respondent’s office and lasted 15 to 30
minutes. (Tr. 54; 66–67.) Eichen observed parts of Marxmil-
ler’s conversation with Marsha Elliott, but he was also perform-
ing other work at the same time.7 (Tr. 54–55; 71–72.)
Marxmiller told Marsha Elliott that he had heard that Re-
spondent’s business was closing and said that he wished to
engage in effects bargaining on behalf of the Union’s members.
(Tr. 43.) Marsha Elliott replied that nothing in the collective-
bargaining agreement required her to engage in effects bargain-
ing. (Id.) Marxmiller reminded her that the parties’ contract
remained in effect until September 2014. (Tr. 44.)
Marsha Elliott told Marxmiller that she was starting to pay
out vacation time. (Tr. 44; 69.) She also stated that she was
intending to pay out the last two bonuses as required by the
contract. (Tr. 69–70.) Marxmiller talked about extending
healthcare coverage through September 2014, as well as a sev-
erance package and bonus. (Id.) Marsha Elliott said that Re-
spondent would cover healthcare until the end of October, but
added that it was not her decision to make. (Tr. 70.) Marxmil-
ler asked Marsha Elliott to get back to him when she had an
answer or knew what was going to happen. (Id.) No one took
notes at this meeting and no proposals or agreements were put
in writing. (Tr. 45.)
On September 5, Marxmiller sent Respondent a certified let-
ter seeking effects bargaining over Respondent’s decision to
close its business.8 (GC Exh. 6; Tr. 45.) It is undisputed that
Respondent was still doing business as of that date. (GC Exh.
10; Tr. 22.) Respondent did not respond to Marxmiller’s letter.
(Tr. 46.) Marxmiller attempted to reach Marsha Elliott by tele-
phone once or twice after he sent his letter. (Tr. 53.) Although
Marxmiller left at least one voicemail message for Marsha El-
liott, she did not respond. (Id.)
D. Respondent Closes Its Business
During Respondent’s last month of operations, its employees
were no longer delivering concrete. The few employees that
remained in September were involved in inventory, cleanup,
and maintenance activities. (Tr. 22.) Finally, around Septem-
ber 28, Marsha Elliott held a meeting with Respondent’s em-
ployees and announced that there was no longer any work
7 I credit Eichen’s testimony regarding what he observed during the
conversation between Marxmiller and Marsha Elliott. Although Eichen
candidly admitted that he was in and out and doing other work during
the conversation, his testimony seemed forthright and honest. His
testimony was not discredited in any way on cross-examination and he
testified in a steady manner. His testimony and that of Marxmiller was
similar in most respects. However, where Eichen’s testimony diverges
from that of Marxmiller, I credit Eichen.
8 Although Marxmiller’s letter was sent on September 5, it was not
signed for by Lindsey Elliott until October 19. (GC Exh. 6; Tr. 46.)
available. (Tr. 22.)
The Union did not receive any sort of notification that Re-
spondent had closed its business. (Tr. 46–47.) In fact, Re-
spondent never contacted Marxmiller at any time subsequent to
September 5. (Tr. 46.) In October 2013, Marxmiller drove by
Respondent’s Champaign, Illinois facility and found it closed.
(Tr. 49.) A notice posted on the front door of the facility,
signed by Marsha Elliott, indicated that Respondent had ceased
doing business. (GC Exh. 11.)
DISCUSSION AND ANALYSIS
A. Witness Credibility
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences
that may be drawn from the record as a whole. Double D Con-
struction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516
(D.C. Cir. 2003). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all
kinds of judicial decisions than to believe some, but not all, of a
witness’ testimony. Daikichi Sushi, 335 NLRB at 622. My
credibility findings are generally incorporated into the findings
of fact set forth above.
I found Eichen’s testimony to be credible. He appeared cer-
tain in his responses to questions on both direct and cross-
examination. He did not appear to embellish his testimony.
Eichen candidly admitted that he did not hear the entire conver-
sation of Marxmiller and Marsha Elliott because he was doing
other work. Furthermore, Eichen had nothing to gain by his
testimony as he was not a member of the bargaining unit.9
Given his candid and largely uncontradicted testimony, I credit
Eichen above other witnesses.
I found Marxmiller to be a generally credible witness. How-
ever, Marxmiller contradicted himself on cross-examination.
When asked why Marsha Elliott was paying out vacation time
to Respondent’s employees, Marxmiller testified that he did not
know. A few moments later Marxmiller admitted that she was
paying out the vacation time because Respondent was closing
its business. (Tr. 56–57.) In addition, Marxmiller intimated on
direct examination that he did not know that Respondent had
closed until he drove by in October. (Tr. 49.) Later, under
cross-examination, he admitted that he knew in September. (Tr.
53–54.) As such, I credit Marxmiller’s testimony except where
his testimony diverges from that of Eichen.
B. Respondent Violated the Act in Failing to Engage in Effects
Bargaining With the Union
Section 8(a)(5) of the Act states that it is an unfair labor
practice for an employer to refuse to bargain collectively with
the representatives of its employees. 29 U.S.C. §158(a)(5).
Section 8(d) of the Act explains that “to bargain collectively” is
9 Eichen was employed as a sales manager by Respondent. Re-
spondent’s timesheets indicate he was a salaried employee. (GC Exh.
10.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1386
to “meet and confer in good faith with respect to wages, hours,
and other terms and conditions of employment, or the negotia-
tion of an agreement or any question arising thereunder.” 29
U.S.C. §158(d).
When an employer decides to close a facility solely for eco-
nomic reasons, it is not obliged to bargain over that decision,
but it is required to negotiate with its unit employees' bargain-
ing representative concerning the effects of its decision. Smurf-
it-Stone Container Enterprises, 357 NLRB 1732, 1733 (2011),
citing First National Maintenance Corp. v. NLRB, 452 U.S.
666, 681–682, 686 (1981). Bargaining over the effects of such
a decision must be conducted in a meaningful manner and at a
meaningful time. First National Maintenance, 452 U.S. at 682.
Effects bargaining must occur sufficiently before the actual
implementation of the decision so that the union is not present-
ed with a fait accompli. Komatsu America Corp., 342 NLRB
649, 649 (2004).
Marxmiller’s uncontroverted testimony establishes that Re-
spondent never provided the Union with official notice of its
decision to close its business. Instead, Marxmiller came to
Respondent’s Champaign facility to inquire about rumors he
had heard concerning Respondent closing its business. Marsha
Elliott announced to the represented employees that the busi-
ness was closing on the last day they worked, however this
notice does not satisfy Respondent’s obligation to notify the
Union. Notice to individual employees does not constitute
notice to the bargaining agent. Bridon Cordage, Inc., 329
NLRB 258, 259 (1999). Marxmiller later learned that the busi-
ness had closed after seeing a notice to this effect posted in
Respondent’s front window in September or October. Accord-
ingly, I find that Respondent did not satisfy its obligation to
timely notify the Union of its decision to close.
Furthermore, Respondent did not satisfy it obligation to en-
gage in meaningful bargaining regarding its decision to close.
Good-faith bargaining requires timely notice and a meaningful
opportunity to bargain regarding the employer’s proposed
change. Dorsey Trailers, Inc., 327 NLRB 835, 858 (1999), enf.
granted in part and denied in part 233 F.3d 831 (4th Cir. 2000).
Additionally, if the notice is given too short a time before im-
plementation, or if the employer has no intention of changing
its mind, then the notice is nothing more than a fait accompli.
Brannan Sand & Gravel, 314 NLRB 282, 282 (1994); Ciba-
Geigy Pharmaceuticals Division, 264 NLRB 1013, 1017–1018
(1982), enfd. 722 F.2d 1120 (3d Cir. 1983). Here, Marsha El-
liott’s actions did amount to meaningful effects bargaining.
She spoke to Marxmiller only briefly. Although she listened to
Marxmiller’s suggestions, no evidence indicates that she altered
her plans regarding the shutdown in any way. She did not re-
spond to Marxmiller’s suggestions or repeated requests for
further bargaining. As such, I find that Respondent did not
satisfy its obligation to engage in good-faith bargaining with
the Union regarding the effects of its decision to close its busi-
ness.
I find no merit in Respondent’s answer to the complaint in
which it denied that a letter seeking effects bargaining was sent
by Marxmiller. (GC Exh. 1(h) par. 6(b); GC Exh. 6.)
Marxmiller testified that after his conversation with Marsha
Elliot, he sent a certified letter to Respondent seeking effects
bargaining. (GC Exh. 6; Tr. 45.) Respondent provided no
evidence disputing that Marxmiller sent the letter. Further-
more, the letter was clearly received by Respondent when it
was signed for by Lindsey Elliott. Proof of mailing with proper
address and postage raises a rebuttable presumption that Re-
spondent received the letter in the ordinary course of business.
See Communication Workers Local 9201 (Pacific Northwest
Bell), 275 NLRB 1529, 1530 (1985), citing Communication
Workers Local 11500 (American Telephone), 272 NLRB 850,
851 (1984). Respondent provided no evidence refuting that the
certified letter was received by Lindsey Elliott on its behalf.
The uncontroverted evidence establishes that Lindsey Elliott
signed for Marxmiller’s letter and that Lindsey Elliott was an
employee of Respondent and Marsha Elliott’s daughter. Thus,
I find that Respondent received Marxmiller’s certified letter
seeking effects bargaining.
Although Respondent had ceased doing business by the time
that Lindsey Elliott belatedly signed for Marxmiller’s letter,
Respondent still received it. Respondent cannot escape its
bargaining obligation by failing or refusing to timely sign for a
certified letter. Failure or refusal to claim certified mail does
not defeat the purposes of the Act. See ITAL General Con-
struction, Inc., 331 NLRB No. 64 (2000) (not published in
Board volumes); and Michigan Expediting Service, 282 NLRB
210 fn. 6 (1986), enfd. 869 F.2d 1492 (6th Cir. 1989). Thus,
Respondent’s failure to timely sign for Marxmiller’s letter,
which was sent while Respondent was still operating its busi-
ness, does not excuse its failure to engage in the requested ef-
fects bargaining.
Marxmiller’s uncontroverted testimony, coupled with his let-
ter of September 5 seeking effects bargaining, lead to the con-
clusion that Respondent did not engage in good faith negotia-
tions regarding its decision to close its business. At the time
that Respondent ceased operations, Respondent and the Union
had not reached any sort of agreement, or come to a good-faith
impasse, over the effects of Respondent’s decision to close its
business. The Board has found a violation of Section 8(a)(5)
and (1) when, at the time of the implementation of a decision,
the parties had not reached agreement and were not at an im-
passe. Tesoro Refining & Marketing, 360 NLRB 293, 294 fn. 5
(2014). Similarly, in this case, the evidence establishes that
Respondent and the Union had not reached any sort of agree-
ment regarding the effects of Respondent’s decision to close its
business and were not at impasse. As such, I find that Re-
spondent failed to satisfy its obligation to bargain in good faith
regarding its decision to close its business and violated Section
8(a)(5) and (1) of the Act.
Moreover, even accepting as true Respondent’s tenuous ar-
gument that Marsha Elliott did not have authority to bargain on
behalf of Respondent, I cannot find that Respondent satisfied
its bargaining obligation.10 The only person with whom
Marxmiller had ever dealt was Marsha Elliot. Respondent’s
argument also seems nonsensical given that Marsha Elliott
10 At the hearing, Respondent’s counsel seemed to argue that Marsha
Elliott did not have authority to bargain on Respondent’s behalf. (Tr.
61–62.) Respondent did not make this argument in its brief, neverthe-
less I address it here.

CHAMPAIGN BUILDERS SUPPLY CO. 1387
signed the most recent collective-bargaining agreement with the
Union on Respondent’s behalf. Furthermore, if Marsha Elliot
lacked authority to bargain on Respondent’s behalf, Respond-
ent failed to identity anyone who had such authority. Sending a
representative to the table without sufficient authority to reach
an agreement does not attain the stature of good faith effects
bargaining. American Needle & Novelty Co., 206 NLRB 534,
543 (1973). This failure, coupled with Respondent’s failure to
engage in the ordinary give-and-take required of good-faith
negotiations, demonstrate a lack of good-faith bargaining. See,
e.g., Penntech Papers, Inc., 263 NLRB 264, 276 (1982) (Board
affirms judge’s finding of a violation of the Act where respond-
ent did not cloak its negotiator with sufficient authority and
adopted a take-it-or-leave-it attitude which foreclosed a good-
faith exchange of ideas). Therefore, if Marsha Elliott lacked
authority to bargain with Marxmiller on Respondent’s behalf,
this provides further evidence that Respondent failed to bargain
in good faith.
I reject Respondent’s arguments, set forth in its brief, that its
actions were somehow excused or justified. Initially, I reject
Respondent’s argument that economic necessity may have
somehow excused its failure to bargain. (See R. Br. 4–5.) Re-
spondent cites no case law in support of this proposition. How-
ever, the law is clear that even though an action may be eco-
nomically motivated, an employer must still notify the union of
its contemplated action and bargain over its effects. Farina
Corp., 310 NLRB 318, 320 (1993). Respondent further argues
that Marsha Elliott offered to “discuss” the future of Respond-
ent’s employees with Marxmiller. However, offering to discuss
a matter with a union does not equate to good-faith collective
bargaining. Mi Pueblo Foods, 360 NLRB 1097, 1127 (2014).
There were no counterproposals made to Marxmiller’s sugges-
tions and no explanations were given for Respondent’s con-
templated actions regarding its employees. See Dallas & Mavis
Specialized Carrier Co., 346 NLRB 253, 279 (2006) (finding
that a respondent did not engage in meaningful negotiations
when it summarily rejected the union’s proposals without ex-
planation and did not make any counterproposals). Instead, as I
have found, Marsha Elliot presented the Union with nothing
more than a fait accompli. She did not engage in any good-
faith exchange of ideas with Marxmiller; instead, she merely
set forth her intentions regarding Respondent’s employees for
Marxmiller to hear. She then failed to respond to Marxmiller’s
letter or voicemail messages seeking effects bargaining. Thus,
Respondent’s arguments lack merit because its failure to en-
gage in meaningful effects bargaining was not excused by any
economic necessity or Marsha Elliott’s brief discussion with
Marxmiller on August 21.
In sum, Respondent violated Section 8(a)(5) and (1) of the
Act by failing to engage in good-faith bargaining with the Un-
ion regarding its decision to close its business. Respondent did
not provide the Union with timely notice of its intent to close.
Respondent’s single, brief meeting with Marxmiller did not
satisfy its obligation to engage in meaningful bargaining over
the effects of its decision. Accordingly, I find that Respondent
violated the Act as alleged in the General Counsel’s complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing to afford the Union prior notice and an oppor-
tunity to bargain over the effects of its decision to close its
business, Respondent has violated Section 8(a)(5) and (1) and
of the Act.
4. The above unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
I will order that Respondent bargain with the Union, on re-
quest, over the effects of its decision to close its business, and
reduce to writing and sign any agreements reached as a result of
such bargaining.
Make-whole relief is not appropriate in effects bargaining
cases. See Fast Food Merchandisers, Inc., 291 NLRB 897,
899–902 (1988). The standard remedy in effects bargaining
cases is a limited make-whole Transmarine remedy, as clarified
in Melody Toyota. Transmarine Navigation Corp., 170 NLRB
389 (1968); Melody Toyota, 325 NLRB 846 (1998); Rochester
Gas & Electric Corp., 355 NLRB 507, 508 (2010); Stevens
International, 337 NLRB 143, 144 (2001). A Transmarine
remedy requires an employer to provide employees with lim-
ited backpay from 5 days after the date of the decision until the
occurrence of one of four specified conditions. See Transma-
rine Navigation Corp, supra at 390.
Furthermore, I will order a limited backpay remedy designed
to make any affected bargaining unit members for any losses
they suffered as a result of Respondent’s failure to bargain
about the effects of the decision to close its business. Specifi-
cally, for each affected bargaining unit member, Respondent
shall pay backpay at the rate of their normal wages from 5 days
after the date of this Decision and Order until the occurrence of
the earliest of the following conditions: (1) Respondent bar-
gains to agreement with the Union about the effects of the deci-
sion to close its business; (2) the parties reach a bona fide im-
passe in bargaining; (3) the Union fails to request bargaining
within 5 days after the receipt of this Decision and Order, or to
commence negotiations within 5 days after receipt of Respond-
ent’s notice of its desire to bargain with the Union; or (4) the
Union subsequently fails to bargain in good faith; but in no
event shall the sum paid to any of the employees exceed the
amount he or she would have earned as wages from the date in
September 2013 when the employee was terminated as a result
of Respondent closing its Champaign, Illinois, facility, to the
time he or she secured equivalent employment elsewhere; pro-
vided, however, that in no event shall this sum be less than the
affected employees would have earned for a 2-week period at
the rate of their normal wages. See Smurfit-Stone Contractor
Enterprises, 357 NLRB 1732, 1738–1739 (2011), citing
Transmarine Navigation Corp., supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1388
Backpay shall be based on the earnings that the affected em-
ployees would normally have received during the applicable
period, and shall be computed in accordance with Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest at the rate prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010).
For all backpay required herein, Respondent shall file a re-
port with the Social Security Administration allocating backpay
to the appropriate calendar quarters. Respondent shall also
compensate the discriminatees for the adverse tax consequenc-
es, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year. Latino Express, Inc., 359
NLRB 518 (2012).
As Respondent has ceased doing business, it shall be re-
quired to mail copies of the attached Notice to Employees
marked “Appendix” to its former employees at its own ex-
pense.
[Recommended Order omitted from publication.]