Conforming Matrix Corporation

National Labor Relations Board - Board Decisions

Sep 13, 2019

368 NLRB No. 75 (N.L.R.B. 2019)

368 NLRB No. 75
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
Conforming Matrix Corporation and International
Union, United Automobile, Aerospace, and Ag-
ricultural Implement Workers of America, Lo-
cal 12 (UAW). Case 08–CA–222146
September 13, 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 the Respondent has failed to file
an answer to the complaint. Upon a charge and a first
amended charge filed by the International Union, United
Automobile, Aerospace, and Agricultural Implement
Workers of America, Local 12 (UAW) (the Union) on
June 18, 2018 and April 2, 2019, the General Counsel
issued a complaint and notice of hearing on April 29,
2019 (the complaint), against Conforming Matrix Corpo-
ration (the Respondent), alleging that it violated Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act). The Respondent failed to file an answer.
On June 7, 2019, the General Counsel filed a Motion
for Default Judgment with the Board. Thereafter, on
June 11, 2019, 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
of service of the complaint, unless good cause is shown.
In addition, the complaint affirmatively stated that, un-
less an answer was filed by May 13, 2019, the Board
may find, pursuant to a motion for default judgment, that
the allegations in the complaint are true. Further, the
undisputed allegations in the General Counsel’s Motion
for Default Judgment disclose that the General Counsel,
by letter and email dated May 15, 2019, advised the Re-
spondent that unless an answer was filed by May 24,
2019, a motion for default judgment would be filed.
Nonetheless, despite these notices, the Respondent failed
to file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations in the
complaint to be admitted as true, and we grant the Gen-
eral 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 corpo-
ration with an office and place of business in Toledo,
Ohio (the Respondent’s facility), has been engaged in the
business of manufacture of custom coating systems and
decorative masking equipment.
During the 12-month period preceding January 31,
2018, the Respondent, in conducting its business opera-
tions described above, sold and shipped from its Toledo,
Ohio facility 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 meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Jeffrey Mosley held the position
of the Respondent’s general manager, and has been a
supervisor of the Respondent within the meaning of Sec-
tion 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act. The fol-
lowing employees of the Respondent (the unit) constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All production employees and employees on temporary
layoff, but excluding office clerical employees, ship-
ping and receiving, professional employees, draftsmen,
machine designers, guards and supervisors as defined
by the National Labor Relations Act.
Since at least 2012, and at all material times, the Respond-
ent has recognized the Union as the exclusive collective-
bargaining representative of the unit. This recognition has
been embodied in successive collective-bargaining agree-
ments, the most recent of which was effective from April 1,
2015 to March 31, 2018.
On about February 1, 2018, the Respondent, by Jeffrey
Mosely, notified the Union by email that it would cease
operations and close its facility, effective February 2,
2018. On about February 1 and on subsequent dates, the
Union requested, by voicemail and email, that the Re-
spondent bargain collectively with the Union regarding
the effects of its decision to cease operations and close its
facility. About February 2, 2018, the Respondent ceased
operations and closed its facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The subjects set forth above relate to the wages, hours,
and other terms and conditions of employment of the unit
and are mandatory subjects for the purposes of collective
bargaining. The Respondent engaged in the conduct
described above without providing timely and sufficient
notice of its decision to cease operations to the Union
and without affording the Union a meaningful opportuni-
ty to bargain collectively with the Respondent with re-
spect to the effects of this conduct. Since about February
1, 2018, and continuously thereafter, the Respondent has
failed and refused to bargain collectively about the sub-
jects set forth above.
CONCLUSION OF LAW
By failing and refusing to bargain over the effects of
its decision to close its Toledo, Ohio facility, the Re-
spondent has been failing and refusing to bargain collec-
tively and in good faith with the exclusive collective-
bargaining representative of its employees, in violation
of Section 8(a)(5) and (1) of the Act, and has thereby
engaged in unfair labor practices affecting 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 has violated Section 8(a)(5)
and (1) of the Act by refusing to bargain with the Union
about the effects of its decision to close the facility, we
shall order the Respondent to bargain with the Union, on
request, about the effects of that decision. Because of the
Respondent’s unlawful conduct, however, the unit em-
ployees have been denied an opportunity to bargain
through their collective-bargaining representative at a
time when the Respondent might still have needed their
services and a measure of balanced bargaining power
existed. Meaningful bargaining cannot be assured until
some measure of economic strength is restored to the
Union. A bargaining order alone, therefore, cannot serve
as an adequate remedy for the unfair labor practices
committed.
Accordingly, we deem it necessary, to ensure that
meaningful bargaining occurs and to effectuate the poli-
cies of the Act, to accompany our bargaining order with
a limited backpay requirement designed both to make
whole the unit employees for losses suffered as a result
of the violations and to recreate in some practicable
manner a situation in which the parties’ bargaining posi-
tion is not entirely devoid of economic consequences for
the Respondent. We shall do so by ordering the Re-
spondent to pay backpay to the unit employees in a man-
ner similar to that required in Transmarine Navigation
Corp., 170 NLRB 389 (1968), as clarified by Melody
Toyota, 325 NLRB 846 (1998).
Thus, the Respondent shall pay its unit employees
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 bar-
gains to agreement with the Union on those subjects per-
taining to the effects on the unit employees of its deci-
sion to close its Toledo, Ohio facility; (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; or (4) the Union’s
subsequent failure 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 closed its Toledo,
Ohio facility to the time they secured equivalent em-
ployment elsewhere, or the date on which the Respond-
ent shall have offered to bargain in good faith, whichever
occurs sooner. However, in no event shall this sum be
less than the unit 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 inter-
im earnings, and shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010), and minus tax withholdings re-
quired by State and Federal law.
Additionally, we shall order the Respondent to com-
pensate the unit employees for any adverse tax conse-
quences of receiving a lump-sum backpay award and to
file a report with the Regional Director for Region 8 al-
locating the backpay award to the appropriate calendar
years for each employee. Advoserv of New Jersey, Inc.,
363 NLRB No. 143 (2016).
Finally, in view of the fact that the Respondent has
closed its Toledo, Ohio facility, we shall order the Re-
spondent to mail a copy of the attached notice to the Un-
ion and to the last known addresses of its former unit
employees to inform them of the outcome of this pro-
ceeding.
CONFORMING MATRIX CORP. 3
ORDER
The National Labor Relations Board orders that the
Respondent, Conforming Matrix Corporation, 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 the International Union, United Automo-
bile, Aerospace, and Agricultural Implement Workers of
America, Local 12 (UAW) (the Union) as the exclusive
collective-bargaining representative of the employees in
the following bargaining unit by failing and refusing to
bargain over the effects of the Respondent’s decision to
close its Toledo, Ohio facility:
All production employees and employees on temporary
layoff, but excluding office clerical employees, ship-
ping and receiving, professional employees, draftsmen,
machine designers, guards and supervisors as defined
by the National Labor Relations Act.
(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 collectively and in good faith
with the Union concerning the effects of the Respond-
ent’s decision to close its Toledo, Ohio facility and re-
duce to writing and sign any agreement reached as a re-
sult of such bargaining.
(b) Pay to the unit employees their normal wages for
the period set forth in the remedy section of this decision,
with interest.
(c) Compensate the unit employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 8,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years 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, 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”1 to the Union
and to the last-known address of all unit employees who
were employed by the Respondent at the time that it
closed its facility on about February 2, 2018. In addition
to the physical mailing of paper notices, notices shall be
distributed electronically, such as by email, posting on an
intranet or internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 8 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps the Respondent has taken to
comply.
Dated, Washington, D.C. September 13, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) 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
violated 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 a representative 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.

1 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
WE WILL NOT fail and refuse to bargain collectively
and in good faith with International Union, United Au-
tomobile, Aerospace, and Agricultural Implement Work-
ers of America, Local 12 (UAW) (the Union) as the ex-
clusive collective-bargaining representative of our em-
ployees in the following unit by failing to bargain with
the Union over the effects of our decision to close our
Toledo, Ohio facility:
All production employees and employees on temporary
layoff, but excluding office clerical employees, ship-
ping and receiving, professional employees, draftsmen,
machine designers, guards and supervisors as defined
by the National Labor Relations Act.
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 collectively and in good
faith with the Union concerning the effects of our deci-
sion to close our Toledo, Ohio facility on February 2,
2018, and WE WILL reduce to writing and sign any
agreement reached as a result of such bargaining.
WE WILL pay our unit employees limited backpay in
connection with our failure to bargain over the effects of
our decision to close our Toledo, Ohio facility, as re-
quired by the Decision and Order of the National Labor
Relations Board.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector 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 calendar years for each employee.
CONFORMING MATRIX CORPORATION
The Board’s decision can be found at
www.nlrb.gov/case/08-CA-222146 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.
LI