Holcomb & Hoke Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 29, 2010

355 NLRB No. 4 (N.L.R.B. 2010)

355 NLRB No. 4
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.
Holcomb & Hoke Mfg. Co., Inc. and United Steel,
Paper & Forestry, Rubber, Manufacturing, En-
ergy, Allied Industrial & Service Workers In-
ternational Union, AFL–CIO, CLC. Case 25–
CA–31014
January 25, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has withdrawn its
answer to the complaint and has failed to file an answer
to the compliance specification. Upon a charge and an
amended charge filed by United Steel, Paper & Forestry,
Rubber, Manufacturing, Energy, Allied Industrial & Ser-
vice Workers International Union, AFL–CIO, CLC (the
Union) on May 18 and June 30, 2009, respectively, the
General Counsel issued the complaint on August 28,
2009, against Holcomb & Hoke Mfg. Co., Inc. (the Re-
spondent), alleging that it has violated Section 8(a)(5)
and (1) of the Act. Thereafter, on September 10, 2009,
the Respondent filed an answer to the complaint. On
October 7, 2009, the General Counsel issued an order
consolidating complaint and compliance specification,
compliance specification, and notice of hearing (the con-
solidated complaint and compliance specification). By
letter dated October 14, 2009, the Respondent withdrew
its answer to the complaint and informed the General
Counsel that it did not intend to contest the allegations
set forth in the consolidated complaint and compliance
specification. Accordingly, the Respondent failed to file
an answer to the consolidated complaint and compliance
specification.
On November 20, 2009, the General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on November 23, 2009, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted. On
December 4, 2009, the Respondent filed a response reit-
erating its reasons for not contesting the General Coun-
sel’s Motion for Default Judgment, as stated in the Re-
spondent’s October 14, 2009 letter withdrawing its an-
swer. The allegations in the motion are therefore undis-
puted.
Ruling on Motion for Default Judgment1

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
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. Similarly, Section 102.56 of the Board’s Rules
and Regulations provides that the allegations in a com-
pliance specification will be taken as true if an answer is
not filed within 21 days from service of the compliance
specification. In addition, the consolidated complaint
and compliance specification affirmatively stated that
unless an answer was received by October 28, 2009, the
Board may find, pursuant to a motion for default judg-
ment, that the allegations in the consolidated complaint
and compliance specification are true.
Here, although the Respondent filed an answer to the
complaint on September 10, 2009, it subsequently with-
drew its answer by letter dated October 14, 2009. The
withdrawal of an answer has the same effect as a failure
to file an answer, i.e., the allegations in the complaint
must be considered to be true.2
Accordingly, based on the withdrawal of the Respon-
dent’s answer to the complaint, and in the absence of
good cause being shown for the failure to file an answer
to the consolidated complaint and compliance specifica-
tion, we deem the allegations in the complaint and in the
consolidated complaint and compliance specification to
be admitted as true, and we grant the General Counsel’s
Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Indianapolis,
Indiana (the Respondent’s facility), has been engaged in
the manufacture and sale of partitions, operable walls,

Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Teamsters Local 523 v. NLRB, ___F.3d
___, 2009 WL 4912300 (10th Cir. Dec. 22, 2009); Narricot Industries,
L.P. v. NLRB, 587 F.3d 654 (4th Cir. 2009); Snell Island SNF LLC v.
NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed 78 U.S.L.W.
3130 (U.S. Sept. 11, 2009) (No. 09-328); New Process Steel v. NLRB,
564 F.3d 840 (7th Cir. 2009), cert. granted 130 S.Ct.488 (2009); North-
eastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition
for cert. filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009)(No. 09-213); But
see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept.
29, 2009) (No. 09-377).
2 See Maislin Transport, 274 NLRB 529 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
and accordion doors. During the 12-month period end-
ing May 17, 2009, the Respondent, in conducting its
business operations described above, sold and shipped
from its Indianapolis, Indiana facility goods valued in
excess of $50,000 directly from points outside the State
of Indiana, and purchased and received at its Indianapo-
lis, Indiana facility goods valued in excess of $50,000
directly from points outside the State of Indiana.
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 United Steel, Paper & Forestry,
Rubber, Manufacturing, Energy, Allied Industrial & Ser-
vice Workers International Union, AFL–CIO, CLC, the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Vincent Herndon–Co-owner/President
Steven Giese–Co-owner/Executive Vice President
Jeff Browning–Personnel Manager
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All employees of the Respondent, BUT EXCLUDING
salaried, clerical, installation instructors, field service
technicians, sales forces employees, all employees
whose regular place of work is not at the Indianapolis,
Indiana Plant of Respondent, and all guards and super-
visors as defined in the Act.
Since about the 1930s and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit and, since then the
Union has been recognized as the representative by the
Respondent. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most recent
of which is effective from July 13, 2008, to July 9, 2011.
At all times since the 1930s, based on Section 9(a) of
the Act, the Union has been the exclusive collective-
bargaining representative of the unit.
About February 6, 2009, the Respondent failed to con-
tinue in effect all the terms and conditions of the agree-
ment described above by repudiating the agreement, in-
cluding by: failing to process grievances filed by the Un-
ion, collecting union dues from employees in the unit but
failing to remit such dues to the Union, collecting
AFLAC insurance premium moneys from employees in
the unit but failing to remit such moneys to the insurance
company, failing to pay employees for 2008 vacation and
personal days due and owing under the above agreement,
and failing to contribute to the employees’ 401(k) plan
the contributions due and owing under the above agree-
ment.
The Respondent engaged in the conduct described
above without the Union’s consent.
About February 6, 2009, the Respondent ceased opera-
tions at its facility.
About February 23 and March 11, 2009, respectively,
by letters sent via certified mail, the Union requested that
the Respondent bargain collectively about the effects on
unit employees of the plant closure.
The Respondent ceased operations at its facility with-
out affording the Union an opportunity to bargain with
the Respondent with respect to the effects on unit em-
ployees of the plant closure.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining.
CONCLUSIONS OF LAW
1. By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees, and has thereby engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1), and Section 2(6) and
(7) of the Act.
2. By ceasing operations at its facility without afford-
ing the Union an opportunity to bargain with the Re-
spondent with respect to the effects on unit employees of
the plant closure, the Respondent has been failing and
refusing to bargain collectively and in good faith with the
exclusive collective-bargaining representative of its em-
ployees, and has thereby engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(5) and (1) and 8(d), 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, having
found that the Respondent has violated Section 8(a)(5)
and (1) by repudiating its 2008–2011 collective-
HOLCOMB & HOKE MFG. CO. 7
bargaining agreement with the Union by, inter alia, fail-
ing to process grievances filed by the Union, we shall
order the Respondent, on request, to honor the terms and
conditions of its 2008–2011 collective-bargaining
agreement by processing grievances filed by the Union
that have not been processed since February 6, 2009.
In addition, having found that the Respondent has vio-
lated Section 8(a)(5) and (1) by repudiating its 2008–
2011 collective-bargaining agreement with the Union by
failing to remit to the union dues deducted from the pay-
checks of unit employees pursuant to the parties’ 2008–
2011 collective-bargaining agreement, we shall order the
Respondent to remit to the Union the amount set forth in
appendix AA of the consolidated complaint and compli-
ance specification, plus interest accrued to the date of
payment as set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Further, having found that the Respondent has violated
Section 8(a)(5) and (1) by repudiating its 2008–2011
collective-bargaining agreement with the Union by fail-
ing to pay vacation pay and personal leave pay to unit
employees and failing to remit contractually required
contributions for AFLAC insurance premiums and em-
ployee 401(k) plans, we shall order the Respondent to
make the unit employees whole by paying them the
amounts set forth in the compliance specification, plus
interest accrued to the date of payment as set forth in
New Horizons for the Retarded, supra, and minus tax
withholdings required by Federal and State laws.3
To remedy the Respondent’s unlawful failure to bar-
gain with the Union about the effects of its decision to
cease its operations, we shall order the Respondent to
bargain with the Union, on request, about the effects of
that 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 at a time when the Respondent
might still have been in need of their services and a
measure of balanced bargaining power existed. Mean-
ingful bargaining cannot be assured until some measure
of economic strength is restored to the Union. A bar-
gaining order alone, therefore, cannot serve as an ade-
quate 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

3 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).
with a limited backpay requirement designed 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 Respon-
dent to pay backpay to the unit employees in a manner
similar to that required in Transmarine Navigation
Corp., 170 NLRB 389 (1968), as clarified in Melody
Toyota, 325 NLRB 846 (1998).
Pursuant to Transmarine, the Respondent typically
would be required to pay its unit employees’ backpay at
the rate of their normal wages when last in the Respon-
dent’s employ from 5 days after the date of this Decision
and Order until the occurrence of the earliest of the fol-
lowing conditions: (1) the date the Respondent bargains
to agreement with the Union on those subjects pertaining
to the effects of ceasing its business and discontinuing its
operations on its 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.
Transmarine provides that the sum paid to these unit
employees may not exceed the amount they would have
earned as wages from the date on which the Respondent
ceased doing business at the facility to the time they se-
cured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner. However, Trans-
marine further provides that 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 is typically based
on earnings which the unit employees would normally
have received during the applicable period, less any net
interim earnings, and is computed in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest
as set forth in New Horizons for the Retarded, supra.
Here, in the circumstances of the Respondent’s cessa-
tion of operations, the General Counsel in the consoli-
dated complaint and compliance specification seeks only
the minimum 2 weeks of backpay due the unit employees
under Transmarine. Appendices A through Z of the con-
solidated complaint and compliance specification set
forth the amount due each employee. We shall grant the
General Counsel’s request and order the Respondent to
pay those amounts to the discriminatees, plus interest
accrued to the date of payment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Finally, in view of the fact that the Respondent’s facil-
ity is closed, we shall order the Respondent to mail a
copy of the attached notice to the Union 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, Holcomb & Hoke Mfg. Co., Inc., Indian-
apolis, Indiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with United Steel, Paper & Forestry, Rubber,
Manufacturing, Energy, Allied Industrial & Service
Workers International Union, AFL–CIO, CLC, as the
exclusive collective-bargaining representative of the em-
ployees in the unit set forth below, with respect to the
effects of its decision to cease operations at its Indian-
apolis, Indiana facility:
All employees of the Respondent, BUT EXCLUDING
salaried, clerical, installation instructors, field service
technicians, sales forces employees, all employees
whose regular place of work is not at the Indianapolis,
Indiana Plant of Respondent, and all guards and super-
visors as defined in the Act.
(b) Repudiating its 2008–2011 collective-bargaining
agreement with the Union by:
ï‚· failing to process grievances filed by the
Union;
ï‚· failing to remit dues to the Union that
were collected from employees in the
unit;
ï‚· failing to remit AFLAC insurance pre-
mium monies to the insurance company
that were collected from employees in
the unit;
 failing to contribute to the employees’
401(k) plan the contributions due and
owing under the collective-bargaining
agreement; and
ï‚· failing to pay employees for 2008 vaca-
tion and personal days due and owing
under the collective-bargaining agree-
ment.
(c) 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 on unit employees
of its decision to cease operations at its Indianapolis,
Indiana facility, and reduce to writing and sign any
agreement reached as a result of such bargaining.
(b) On request, honor the terms and conditions of its
2008–2011 collective-bargaining agreement with the
Union by processing grievances filed by the Union that
have not been processed since February 6, 2009.
(c) Remit to the Union all dues that were collected
from unit employees pursuant to the parties’ 2008–2011
collective-bargaining agreement that have not been re-
mitted to the Union, by paying to the Union $2545.06,
plus interest accrued to the date of payment as set forth
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(d) Make the unit employees whole for any loss of
earnings and other benefits suffered as a result of its fail-
ure to pay vacation pay and personal leave pay to unit
employees, and for its failure to remit contractually-
required contributions for AFLAC insurance premiums
and employee 401(k) plans, and for its failure to bargain
with the Union concerning the effects on unit employees
of its decision to cease operations at its Indianapolis,
Indiana facility, by paying the individuals named below
the amounts following their names, plus interest accrued
to the date of payment as set forth in New Horizons for
the Retarded, supra, and minus tax withholdings required
by Federal and State laws.4
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(f) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense, and after being signed

4 The compliance specification alleges that five named employees
are also entitled to reimbursement for unpaid medical claims, pursuant
to sec. 16 of the parties’ collective-bargaining agreement, which pro-
vided for specified medical coverage and reimbursement to employees.
The Respondent has failed to file an answer to the compliance specifi-
cation, and has thereby admitted that these employees are entitled to
reimbursement in the amounts specified. Further, the complaint re-
quests a make whole remedy for any losses resulting from the Respon-
dent’s failure to continue in effect all terms and conditions of the
agreement. Accordingly, we have included the medical payments listed
below and in the compliance specification as part of the amounts that
the Respondent shall pay the individuals named below. In addition, we
have corrected two inadvertent typographical errors in the amounts
specified, which do not affect the total amounts due to employees.
HOLCOMB & HOKE MFG. CO. 9
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 at its Indianapolis, Indiana facility at the
time it ceased operations on February 6, 2009.
(g) 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. January 25, 2010
Wilma B. Liebman, Chairman
Peter C. Schaumber 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.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with United Steel, Paper & Forestry,
Rubber, Manufacturing, Energy, Allied Industrial & Ser-
vice Workers International Union, AFL–CIO, CLC, as

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.”
the exclusive collective-bargaining representative of the
employees in the unit set forth below, over the effects of
our decision to cease operations at our Indianapolis,
Indiana facility:
All employees of the Respondent, BUT EXCLUDING
salaried, clerical, installation instructors, field service
technicians, sales forces employees, all employees
whose regular place of work is not at our Indianapolis,
Indiana Plant, and all guards and supervisors as defined
in the Act.
WE WILL NOT repudiate our 2008–2011 collective-
bargaining agreement with the Union by:
ï‚· failing to process grievances filed by the
Union;
ï‚· failing to remit dues to the Union that
were collected from employees in the
unit;
ï‚· failing to remit AFLAC insurance pre-
mium monies to the insurance company
that were collected from employees in
the unit;
 failing to contribute to the employees’
401(k) plan the contributions due and
owing under the collective-bargaining
agreement; and
ï‚· failing to pay employees for 2008 vaca-
tion and personal days due and owing
under the collective-bargaining agree-
ment.
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 on the unit
employees of our decision to cease operations at our In-
dianapolis, Indiana facility on February 6, 2009, and re-
duce to writing and sign any agreement reached as a re-
sult of such bargaining.
WE WILL, on request, honor the terms and conditions
of our 2008–2011 collective-bargaining agreement with
the Union by processing grievances filed by the Union
that have not been processed since February 6, 2009.
WE WILL remit to the Union all dues that were col-
lected from unit employees pursuant to our 2008–2011
collective-bargaining agreement with the Union that have
not been remitted to the Union, by paying to the Union
$2545.06, plus interest.
WE WILL make the unit employees whole for any loss
of earnings and other benefits suffered as a result of our
failure to pay vacation pay and personal leave pay to unit
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
employees, and for our failure to remit contractually re-
quired contributions for AFLAC insurance premiums and
employee 401(k) plans, and for our failure to bargain
with the Union concerning the effects on unit employees
of our decision to cease operations at our Indianapolis,
Indiana facility, by paying them the amounts following
their names, plus interest accrued to the date of payment,
minus tax withholdings required by Federal and State
laws.
HOLCOMB & HOKE MFG. CO., INC.