Armitage Lamp Company

National Labor Relations Board - Board Decisions

Mar 15, 1982

260 N.L.R.B. 951 (N.L.R.B. 1982)

AR MITAG F LAMNP CO()Mll'ANY
Armitage Lamp Company and Warehouse, Mail
Order, Office Professional and Technical Em-
ployees Union Local 743, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 13-CA-20097
March 15, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On September 22, 1981, Administrative Law
Judge Richard L. Denison issued the attached De-
cision in this proceeding. No one claiming to repre-
sent Respondent filed exceptions. However, Robert
N. Goldman and Morton Wallace, named in the
Decision as Respondent's secretary/part-owner and
president/part-owner, respectively, filed excep-
tions. N. Donald Reidy, named in the Decision as
Respondent's owner, also filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, ' findings, and conclu-
sions of the Administrative Law Judge and to
adopt his recommended Order, as modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Armitage Lamp Company, Chicago, Illinois, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified:
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Refusing to bargain with Warehouse, Mail
Order, Office, Professional and Technical Employ-
ees Union Local 743, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
'No one claiming to represent Respondent has filed an answer in this
case. Therefore, all allegations in the complaint are deemed to be ad-
mitted as true Sec. 102 20 of the Board's Rules and Regulations Morton
Wallace and Robert Goldman filed a response to the complaint and a
motion to dismiss themsel.es as parties Wallace and Goldman's response
and motion deny any liability on their part and allege that they sold the
Armitage Lamp Company prior to the commission of the unfair labor
practices However, their responlse does notl affect the liability of Re-
spondent Armitage Lamp Company, for mere change in sltock oV nership
does not absolve a continuing corporation of responsibility under the
Act Miller Trucking Service. Inc. and/or Miller Trucking Seriice Inc.. a
subsidiarv of Tulsa Crude O0d Purchasing Company, 176 NLRB 556 169tq).
enforcement denied for other reasons 445 F 2d 927 (10th Cir 1971)
of America, with respect to the effects on the bar-
gaining unit employees of its decision to close its
Chicago, Illinois, facility.
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Pay the bargaining unit employees of the
former Chicago, Illinois, facility their normal
wages for the period set forth in this Decision,
with interest as set forth in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962)."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL L NOT refuse to bargain collectively
with Warehouse, Mail Order, Office, Profes-
sional and Technical Employees Union Local
743, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, with respect to the effects of our de-
cision to close our facility located at 30 East
26th Street, Chicago, Illinois 60616, on the
bargaining unit employees who were em-
ployed there, and WE WILL reduce to writing
any agreement reached as a result of such bar-
gaining. The collective-bargaining unit is:
All production and maintenance employees
employed by us at our facility; but excluding
all office clerical employees, professional
employees, salesmen, guards, watchmen, art-
ists, designers, truck drivers, supervisory
employees as defined in the Act, and all em-
ployees covered by a written agreement
with another labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL pay the bargaining unit employees
who were employed at the Chicago, Illinois,
facility their normal wages with interest for a
period required by the National Labor Rela-
tions Board.
ARMITAGE LAMP COMPANY
260 NLRB No. 128
951
I)1 C ISI()NS ()F: NAT I()NAI. I. AI()R Rt:I.AlI()NS II()ARI)
DECISION
Sil AIN MINI 01 IHI CASE
RIC iARI) L, Di NISON, Administrative Law Judge:
The hearing in this case opened on March 16. 1981, at
Chicago, Illinois. The original charge, alleging violations
of Section 8(a)(I) and (5) of the National labor Rela-
tions Act, as amended, was filed by Warehouse, Mail
Order, Office, Professional and Technical Employees
Union Local 743, International Brotherhood of Team-
sters. Chauffeurs, Warehousemen and Helpers of Amer-
ica, the Union, on July 2, 1980,' and was served on Re-
sporndent by certified mail on July 7, 1980. The return re-
ceipt, attached to General Counsel's Exhibit l(b), signed
by R. Goldman, is dated July 7, 1980. An amended
charge, dated July 14, alleging violations of Section
8(a)(1), (3), and (5) of the Act, was served on Respond-
ent on July 22, 1980. The return receipt, attached to
General Counsel's Exhibit l(d), signed by R. Goldman, is
dated July 22
The complaint, issued August 12, alleges that the Re-
spondent violated Section 8(a)(5) and (1) of the Act, in
that on or about June 27 the Respondent closed its plant
and laid off its production and maintenance employees.
who were represented by the Union, without prior
notice to or collective bargaining with the Union con-
cerning the effects of such action.
No answer has been filed by anyone claiming to repre-
sent the Respondent. A response, designated "Answer to
Complaint," dated January 22, 1981, was filed by the Re-
spondent's former owners, Robert Goldman and Morton
Wallace, denying liability on their part for any of the
unfair labor practices allegedly committed by the Re-
spondent, by reason of their alleged sale of the Company
on or about May 24.
At the outset of the hearing in this matter counsel for
the General Counsel moved that the answer filed by
Goldman and Wallace be stricken, and for summary
judgment, or in the alternative judgment on the plead-
ings. I denied counsel for General Counsel's motion to
strike the answer of Goldman and Wallace filed on Janu-
ary 22, insofar as it constituted a statement of their posi-
tion, and, after receiving evidence and hearing argu-
ments, adjourned the hearing for consideration of the
merits of counsel for the General Counsel's motion. On
March 30, 1981, counsel for Goldman and Wallace filed
with me a motion to dismiss Robert N. Goldman and
Morton Wallace as parties to this proceeding covering
all issues concerning which I might be expected to rule.
Permission was not granted by me for the filing of any
additional pleadings.
The record in this proceeding is hereby closed.
Ruling on the General Counsel's Motion for
Summary Judgment, and on Goldman and
Wallace's Motion for Dismissal from this
Proceeding as Respondents
Section 102.20 of the Board's Rules and Regulations,
Series 8, as amended, provides:
'All dale% are il 1980 unless other" ise spcoified
l he respondent shall, within 10 days from the serv-
ice of the complaint, file an answer thereto. The re-
spondent shall specifically admit, deny, or explain
each of the facts alleged in the complaint, unless the
respondent is without knowledge, in which case the
respondent shall so state, such statement operating
as a denial. All allegations in the complaint, if no
answ er is filed, or any allegation in the complaint
not specifically denied or explained in an answer
filed, unless the respondent shall state in the answer
that he is without knowledge, shall be deemed to be
admitted to be true and shall be so found by the
Board, unless good cause to the contrary is shown.
The complaint and notice of hearing served on the Re-
spondent specifically states that unless an answer to the
complaint is filed by the Respondent within 10 days of
service thereof "all of the allegations in the complaint
shall be deemed to be admitted true and may be so found
by the Board." The record in this proceeding shows that
no one claiming to be the Respondent has ever filed an
answer to the complaint or opposed the Motion for Sum-
mary Judgment, although the record shows that all pos-
sible representatives of the Respondent have been duly
served. Furthermore, the first response of any kind to
the August 12 complaint was filed by Robert Goldman
and Morton Wallace as former presidents and part
owners of the Respondent, on January 22, 1981. That
document simply stated that they neither admitted nor
denied the allegations of the complaint, but merely al-
leged the sale of the Company on or about May 24 to N.
Donald Reidy, who allegedly took over the operation
and control of the Company on June 13.
At the conclusion of the hearing on March 16, 1981, I
set April 20, 1981, as the date on which briefs, motions,
or other documents needing to be filed in connection
with my consideration of this matter would be due. On
April 6 I received from counsel for Goldman and Wal-
lace a "Motion to Dismiss Robert N. Goldman and
Morton Wallace as Parties Hereto," and an "Amended
Answer to Complaint." The "Amended Answer to Com-
plaint," filed in the absence of a granted motion to
amend the original untimely filed answer, neither admits
nor denies the allegations of the complaint, asserts a lack
of knowledge or events concerning Armitage Lamp
Company after June 13, and denies that Goldman and
Wallace were owners or officers of the Respondent after
that time.
Therefore, no timely response to the complaint having
been filed, and no good cause to the contrary having
been shown, in accordance with the Board's Rules set
forth above, the allegations of the complaint are deemed
to be admitted and found to be true. Accordingly, I
grant the General Counsel's Motion for Summary Judg-
ment.
Goldman and Wallace concede that they formed and
operated the Respondent for about 15 years, "up until
approximately the middle of June 1980." They then met
and negotiated with Donald Reidy for the purchase of
the assets and liabilities of the Company. The bill of sale,
in evidence, is dated June 13. Other documents in evi-
dence show that thereafter Morton Wallace was retained
94i52
ARMITAGE LAMP COMPANY
by the Company as a management consultant for a term
of 60 months, while Goldman continued to be in charge
of marketing and sales. On or about June 27, the Re-
spondent closed the plant and laid off its bargaining unit
employees. Goldman and Wallace assert that thereafter
Reidy decided that he did not want to buy the Company
and that Goldman and Wallace could have the Company
back. As noted earlier in this Decision, the original
charge in Case 13-CA-20097 was filed on July 2, served
on the Respondent by certified mail on or about July 3,
and received by the Respondent on or about July 7. The
return receipt dated July 7, addressed to Respondent, is
signed by R. Goldman. Likewise, the amended charge in
this case filed July 14, alleging violations of Section
8(a)(1), (3), and (5) of the Act in connection with the
events surrounding the closing of the Company's plant
on or about June 27, was served on the Respondent by
certified mail on or about July 15, and was received by
the Respondent on July 22. The return receipt, signed by
R. Goldman, is dated July 22. Thus, the record clearly
shows that Goldman's and Wallace's association with the
Respondent is, at the very least, far too close at the time
of the events in question to justify their dismissal from
this proceeding at this time. Finally, the decision of the
Illinois Department of Labor to the effect that, under the
law of the State of Illinois, Wallace and Goldman were
not responsible parties for wage claims filed by employ-
ees under Illinois law with that department, is not dispos-
itive of sole issue presented here, the Respondent's liabil-
ity for unfair labor practices. It has been long settled
since the earliest days of the Act that Congress has as-
signed the Board the sole responsibility for assessing lia-
bility for the unfair labor practices set forth in Section 8
of the Act. Therefore, Goldman's and Wallace's argu-
ment that they are absolved of liability by virtue of the
law of the State of Illinois is without merit. Goldman's
and Wallace's motion to be dismissed from this proceed-
ing is denied.
On the basis of the entire record, including the consid-
eration of briefs, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is, and has been at all times material
herein, an Illinois corporation, with its principal office
and place of business at 30 East 26th Street, Chicago, 11-
linois 60616 (herein called the facility), where it has been
engaged in the manufacture and wholesale distribution of
lamps.
During the last calendar year, a representative period,
the Respondent, in the course and conduct of its business
operations described above, purchased and received
goods valued in excess of $50,000 directly from points
outside the State of Illinois.
I find that Respondent is. and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION
The Union is now, and has been at all times material
herein, a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE UNFAIR I ABOR PRACTICES
A. Supervisory and 4genev Status
At all times material herein, the following-named per-
sons have occupied the positions set forth opposite their
respective names, and have been, and are now, agents of
the Respondent, acting on its behalf within the meaning
of Section 2(13) of the Act, and are supervisors within
the meaning of Section 2(11) of the Act: Morton Wal-
lace-secretary and part owner; Robert Goldman-presi-
dent and part owner; and N. Donald Reidy--owner.
B. The Appropriate Unit
All production and maintenance employees employed
by the Respondent at the facility: but excluding all office
clerical employees, professional employees, salesmen,
guards, watchmen, artists, designers, truckdrivers, super-
visory employees as defined in the Act, and all employ-
ees covered by a written agreement with another labor
organization, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
Since 1965 or 1966, and continuing to date, the Union
has been the representative for the purpose of collective
bargaining of the employees in the unit described above,
and, by virtue of Section 9(a) of the Act, has been, and is
now, the exclusive representative of all the employees in
said unit for the purpose of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
C. The 8(a)(5) and (1) Violations
On or about June 27, 1980, the Respondent closed its
facility and laid off its employees in the unit described
above. The Respondent took the action described above
without prior notice to the Union, and without having
afforded the Union an opportunity to negotiate and bar-
gain as the exclusive representative of the employees
with respect to the effects of such action.
I find that by the acts described above, and by each of
these acts, the Respondent has failed and refused, and is
failing and refusing, to bargain collectively with the rep-
resentative of its employees and the Respondent has
thereby been engaging 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.
THE REMEFI)D
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order
that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act. I have found that the Respondent closed
its plant on or about June 27, 1980, and laid off its unit
employees vwithout prior notice to the Union. and with-
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out affording the Union an opportunity to negotiate and
bargain on behalf of the employees it represented con-
cerning the effects of such action. It is a well-established
principle of Board law that an employer must bargain
with the exclusive representative of its unit employees
with respect to the effects of plant closure, even where
economic reasons were the only motivation for the deci-
sion to close. This principle has remained undisturbed in
numerous Board and court decisions, and was recently
referred to with approval in the United States Supreme
Court's latest pronouncement in this area of the law on
June 22, 1981, in First National Maintenance Corp. v.
N.L.R.B., 452 U.S. 66.
The General Counsel has requested that in fashioning
a remedy I apply the Board's ruling in Transmarine Navi-
gation Corporation, 170 NLRB 389 (1968). 1 find that re-
quest to be appropriate. Here, as in the Transmarine case,
it is clear that the Respondent's unit employees were not
afforded an opportunity for bargaining through their
contractual representative prior to the plant's closing, a
time when bargaining would have been most effective in
easing the hardship of termination on the employees.
Thus, under the circumstances, the situation which exist-
ed at the time the Respondent's unfair labor practices
were committed cannot be restored. Therefore, as noted
by the Board, the guiding principle in the search for an
appropriate remedy must be "that the wrongdoer, rather
than the victims of the wrongdoing, should bear the con-
sequences of his unlawful conduct, and that the remedy
should 'be adapted to the situation that calls for re-
dress."' Consequently, although it is necessary to require
the Respondent to bargain with the Union about the ef-
fects of the plant closure on its unit employees, a bar-
gaining order must be reinforced by a limited backpay
requirement to make whole the employees for losses suf-
fered from the violation and to establish the parties' bar-
gaining position in a posture containing economic conse-
quences for the Respondent. Thus, I shall order the Re-
spondent to bargain with the Union, upon request, con-
cerning the effects on its unit employees at the closed fa-
cility, and to pay these employees amounts at the rate of
their normal wages when last in the Respondent's
employ from 5 days after the date of this Decision until
the occurrence of the earliest of the following condi-
tions: (1) the date the the Respondent bargains for agree-
ment with the Union on those subjects pertaining to the
effects of the closing on the employees in the appropriate
collective-bargaining unit at its Chicago, Illinois, facility;
(2) a bona fide impasse in bargaining; (3) the failure of
the Union to request bargaining within 5 days of this De-
cision, or to commence negotiations within 5 days of the
Respondent's notice of its desire to bargain with the
Union; or (4) the subsequent failure of the Union to bar-
gain in good faith; but in no event shall the sum paid to
any of these employees exceed the amount he would
have earned as wages from June 27, 1980, the date on
which the Respondent terminated its Chicago, Illinois,
operations, to the time he secured equivalent employ-
ment elsewhere, whichever occurred sooner, provided,
however, that in no event shall this sum be less than
these employees would have earned for a 2-week period
at the rate of their normal wages when last in the Re-
spondent's employ.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 1O(c)
of the Act, I hereby issue the following recommended:
ORDER 2
The Respondent, Armitage Lamp Company, Chicago,
Illinois, its officers, agents, successors, and assigns, shall:
1. Cease and desist from refusing to bargain with
Warehouse, Mail Order, Office, Professional and Techni-
cal Employees Union Local 743, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, with respect to the effects on the
bargaining unit employees of its decision to close its Chi-
cago, Illinois, facility.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Pay the bargaining unit employees of the former
Chicago, Illinois, facility their normal wages for the
period set forth in this Decision.
(b) Upon request, bargain collectively with Ware-
house, Mail Order, Office, Professional and Technical
Employees Union Local 743, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, with respect to the effects on its bargaining
unit employees of its decision to close its Chicago, Illi-
nois, facility, and reduce to writing any agreement
reached as a result of such bargaining.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Mail an exact copy of the attached notice marked
"Appendix," 3 to Warehouse, Mail Order, Office, Profes-
sional and Technical Employees Union Local 743, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, and to all the bar-
gaining unit employees who were employed at its former
Chicago, Illinois, facility. Copies of said notice, on forms
provided by the Regional Director for Region 13, after
being duly signed by its authorized representative, shall
be mailed immediately upon receipt thereof, as herein di-
rected.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
Inl the c \et Ino ct xcpIoinls aire filed aS pr(l, idcd h Sec 1(12 4 iof the
Rule' alid Rcgula tion of the Nalionlal I ahbor Relalilon, Hoard. the find-
Ing',. conclllilll, and rcommnicltded Order herein ihall, a% pro' ided 1n
Sec 11)2 48 of the Rule, anld Regiulaliolr. he adopted hy Ihe HBoard and
becorme il, findilng. cIllincJhllin. and Order, and all I) behlcCtn IhCterCet
11all] he. decutild \ l ai.d for all purpoulse
' In the c rl hat aith ()rder is eillfirccd hr .u Judgmenit it a Utnited
St;ate, Coulrt of Appeals. he w, ord. in Ihe notice reading I"P'ot,.:d h
OIrder of the Natinal I ahior Relatioi, ttoard" shall read iio,ted i'ur u-
ant ho a Judgmlen.l of the United States Court olf Appeal itfirc lng al
()rder of the N.ationail I aibr Relation,, Bo.rd
954