Delaware Valley Designers & Mfrs.

National Labor Relations Board - Board Decisions

Jul 16, 2010

355 NLRB No. 52 (N.L.R.B. 2010)

355 NLRB No. 52
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.
Delaware Valley Designers and Manufacturers, Inc.
and New Jersey Regional Council of Carpenters.
Case 4–CA–37307
July 16, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
The Acting 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 filed
by the New Jersey Regional Council of Carpenters (the
Council) on February 1, 2010, the General Counsel is-
sued the complaint and notice of hearing on March 23,
2010, against Delaware Valley Designers and Manufac-
turers, Inc. (the Respondent), alleging that it has violated
Section 8(a)(5) and (1) of the Act. The Respondent
failed to file an answer.
On May 7, 2010, the General Counsel filed a Motion
for Default Judgment with the Board. Thereafter, on
May 12, 2010, 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 the complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is
shown. In addition, the complaint affirmatively states
that unless an answer is received by the Regional Office
on or before April 6, 2010, the Board may find, pursuant
to a motion for default judgment, that the allegations in
the complaint are true. Further, the undisputed allega-
tions in the Acting General Counsel’s motion disclose
that the Region, by letter dated May 3, 2010, notified the
Respondent that unless an answer were received by May
10, 2010, a motion for default judgment would be filed.1

1 By letter dated May 5, 2010, the Respondent’s attorney advised the
Regional Attorney for Region 4 that the Respondent’s company has
ceased operations, and turned over its assets for liquidation. The letter
further states that there are no funds available to pay unsecured credi-
tors and that the Respondent would not be defending any action before
the Board. The Board has long held that the liquidation of assets does
not shield a respondent from the obligation to file a timely answer. See
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the Acting 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, until about January 25, 2010, the
Respondent, a New Jersey corporation with a facility in
Pennsauken, New Jersey (the Pennsauken facility), was
engaged in the manufacture of nonwooden partitions,
shelving, counters, counter displays and lockers for
stores and offices and the manufacture and installation of
wooden millwork and trim. During the 12-month period
preceding the issuance of the complaint, the Respondent,
in conducting its business operations described above,
sold and shipped goods valued in excess of $50,000 di-
rectly to points outside the State of New Jersey. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that New Jersey Regional Council of Car-
penters is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Local 2098, New Jersey Re-
gional Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America (Local 2098) has been
a labor organization within the meaning of Section 2(5)
of the Act.
At all material times, the following individuals have
held the positions set forth opposite their respective
names and have been supervisors within the meaning of
Section 2(11) of the Act, and agents within the meaning
of Section 2(13) of the Act, acting on behalf of the Re-
spondent:
Samuel LaCroce Chief Executive Officer and
President
Joseph Berman Manager
The Respondent’s production and maintenance em-
ployees at the Pennsauken facility have constituted a unit

Valiant Metal Products, 244 NLRB 1049 (1979). Similarly, the Board
has held that cessation of operations or bankruptcy does not relieve
respondents of the obligation to file an answer. OK Toilet & Towel
Supply, 339 NLRB 1100, 1101 (2003); Miami Rivet of Puerto Rico, 307
NLRB 1390, 1391 fn. 2 (1992); see also Holt Plastering, Inc., 317
NLRB 451, 451 (1995) (respondent was not excused from filing an
answer to compliance specification, even though the respondent noti-
fied the Board it had “ceased operations and liquidated the plant facili-
ties”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(the unit), appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
At all material times, the Council and Local 2098 (col-
lectively, the Union) have been the designated exclusive
collective-bargaining representatives of the unit and the
Council and Local 2098 have been recognized as the
representatives by the Respondent. This recognition has
been embodied in successive collective-bargaining
agreements, the most recent of which is effective by its
terms from July 1, 2008 through June 30, 2011.
At all material times, since at least July 1, 2008, based
on Section 9(a) of the Act, the Council and Local 2098,
collectively the Union, have been the exclusive collec-
tive-bargaining representatives of the unit.
On about January 25, 2010, the Respondent ceased op-
erations at the Pennsauken facility.2
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to the effects of this conduct.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
with the exclusive collective-bargaining representatives
of its employees, and has thereby engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, to remedy
the Respondent’s unlawful failure and refusal to bargain
with the Union about the effects of the Respondent’s
decision to cease its operations at the Pennsauken facil-
ity, we shall order the Respondent to bargain with the
Union, on request, about the effects of its decision. As a
result of the Respondent’s unlawful conduct, however,
the unit employees have been denied an opportunity to
bargain through their collective-bargaining representative

2 Although the complaint alleges that the Respondent’s cessation of
operations is a mandatory subject of bargaining, we need not address
that allegation because there is no allegation that the failure to bargain
about the decision to close violates the Act. Instead, the complaint
specifically alleges only that the Respondent violated the Act by failing
to give notice and afford the Union an opportunity to bargain about the
effects of that conduct. The Board has repeatedly found that the effect
of such decisions on unit employees is a mandatory bargaining subject.
See Shasta Regional Medical Center, LLC, 354 NLRB No. 65, slip op.
at 2 fn. 2 (2009); Nick & Bob Partners, 340 NLRB 1196, 1198 (2003).
Accordingly, we find that the complaint supports a cause of action as to
the failure to bargain over the effects of the Respondent’s decision to
cease its operations and to lay off its unit employees.
at a time when the Respondent might still have been in
need of their services and a measure of balanced bargain-
ing power existed. Meaningful bargaining cannot be
assured until some measure of economic strength is re-
stored 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, 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 re-create in some practicable man-
ner a situation in which the parties’ bargaining position is
not entirely devoid of economic consequences for the
Respondent. We shall do so by ordering the 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).3
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 of its decision to cease operations at
its Pennsauken facility on the unit employees; (2) a bona
fide impasse in bargaining; (3) the Union’s failure to
request bargaining within 5 business days after receipt of
this Decision and Order, or to commence negotiations
within 5 business days after receipt of the Respondent’s
notice of its desire to bargain with the Union; or (4) the
Union’s subsequent failure to bargain in good faith. In
no event shall the sum paid to these employees exceed
the amount they would have earned as wages from the
date on which the Respondent ceased operations of the
facility to the time they secured equivalent employment
elsewhere, or the date on which the Respondent shall
have offered to bargain in good faith, whichever 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 Respon-
dent’s employ. Backpay shall be based on earnings

3 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
Neither the complaint nor the motion specify the impact, if any, on the
unit employees of the Respondent’s decision to close. Thus, we do not
know whether, or to what extent, the refusal to bargain about the effects
of this decision had an impact on the unit employees. In these circum-
stances, we shall permit the Respondent to contest the appropriateness
of a Transmarine backpay remedy at the compliance stage. See, e.g.,
Buffalo Weaving & Belting, 340 NLRB 684, 685 fn. 3 (2003); and ACS
Acquisition Corp., 339 NLRB 736, 737 fn. 2 (2003).
DELAWARE VALLEY DESIGNERS & MFRS. 3
which the unit employees would normally have received
during the applicable period, less any net interim earn-
ings, and shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).4
Finally, in view of the fact that the Respondent has
closed its Pennsauken 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 in order to inform them of the outcome of this
proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Delaware Valley Designers and Manufac-
turers, Inc., Pennsauken, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with New Jersey Regional Council of Carpen-
ters and Local 2098, New Jersey Regional Council of
Carpenters, United Brotherhood of Carpenters and Join-
ers of America, collectively the Union, as the exclusive
collective-bargaining representatives of the Respondent’s
production and maintenance employees (the unit) over
the effects of the Respondent’s decision to cease opera-
tions at its Pennsauken, New Jersey facility.
(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 concerning the
effects on the unit employees of the Respondent’s deci-
sion to cease operations at its Pennsauken, New Jersey
facility, and reduce to writing any agreement reached as
a result 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) 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 re-
cords and reports, and all other records including an elec-

4 In the complaint, the General Counsel seeks compound interest
computed on a quarterly basis for any backpay or other monetary
awards. Having duly considered the matter, we are not prepared at this
time to deviate from our current practice of assessing simple interest.
See, e.g., Glen Rock Ham, 352 NLRB 516, 516 fn. 1 (2008), citing
Rogers Corp., 344 NLRB 504 (2005).
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(d) 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”5 to the Union
and to all unit employees who were employed by the
Respondent on January 25, 2010.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. July 16, 2010
Wilma B. Liebman, Chairman
Craig Becker, Member
Mark Gaston Pearce, 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 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.

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 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 New Jersey Regional Council of Car-
penters and Local 2098, New Jersey Regional Council of
Carpenters, United Brotherhood of Carpenters and Join-
ers of America, collectively the Union, as the exclusive
collective-bargaining representatives of our production
and maintenance employees (the unit) over the effects of
our decision to cease operations at our Pennsauken, New
Jersey facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively and in good
faith with the Union concerning the effects of our deci-
sion to cease operations at our Pennsauken, New Jersey
facility, and WE WILL reduce to writing and sign any
agreement reached as a result of such bargaining.
WE WILL pay the unit employees their normal wages
for the period set forth in the Decision and Order of the
National Labor Relations Board, with interest.
DELAWARE VALLEY DESIGNERS AND
MANUFACTURERS, INC.