Fuel Systems, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2009

354 NLRB No. 63 (N.L.R.B. 2009)

354 NLRB No. 63
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.
Fuel Systems, Inc. and International Brotherhood of
Teamsters, Local Union No. 710. Case 13–CA–
45208
August 12, 2009
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case on the ground that the Respondent has withdrawn its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. Upon a charge filed on April 3,
2009, by International Brotherhood of Teamsters, Local
Union No. 710, the Union, the General Counsel issued
the complaint on May 22, 2009, against Fuel Systems,
Inc., the Respondent, alleging that it has violated Section
8(a)(5) and (1) of the Act. On June 4, 2009, the Respon-
dent filed an answer to the complaint. However, by letter
dated June 10, 2009, the Respondent withdrew its an-
swer.
On June 16, 2009, the General Counsel filed a Motion
for Default Judgment with the Board. On June 22, 2009,
the Union filed a response in support of the General
Counsel’s Motion. On June 18, 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. The Respondent filed no response. The allega-
tions in the motion are therefore undisputed.
Ruling on Motion for Default Judgment1
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 stated
that unless an answer was filed by June 5, 2009, all the

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
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 Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir.
2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009)
(No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st
Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469
(D.C. Cir. 2009), petitions for rehearing denied Nos. 08-1162, 08-1214
(July 1, 2009).
allegations in the complaint would be considered admit-
ted. As set forth in the General Counsel’s Motion, by
letter dated June 4, 2009, the Trustee in Bankruptcy, by
his attorney, filed an answer to the complaint.2 However,
by letter dated June 10, 2009, the Trustee, through his
attorney, withdrew its answer. 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.3
In the absence of good cause being shown for the fail-
ure to file an answer, 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 Delaware cor-
poration, with an office and place of business located at
5852 W. 51st Street, Chicago, Illinois, has been engaged
in the business of manufacturing fuel tanks.
During the calendar year preceding issuance of the
complaint, a representative period, the Respondent, in
conducting its business operations described above, sold
and shipped goods and materials valued in excess of
$50,000 to points directly outside the State of Illinois
from its Chicago facility.
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, 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:
Brenda Ritsema Director of Human Resources
Bob Tipton Plant Manager

2 Although the Respondent has filed for bankruptcy, it is well estab-
lished that the institution of bankruptcy proceedings does not deprive
the Board of jurisdiction or authority to entertain and process an unfair
labor practice case to its final disposition. See, e.g., Cardinal Services,
295 NLRB 933, 933 fn. 2 (1989), and cases cited therein. Board pro-
ceedings fall within the exception to the automatic stay provisions of
the Bankruptcy Code for proceedings by a Governmental unit to en-
force its police or regulatory powers. See id. and cases cited therein;
NLRB v. 15th Avenue Iron Works, Inc., 964 F.2d 1336, 1337 (2d Cir.
1992). Accord: Aherns Aircraft, Inc. v. NLRB, 703 F.2d 23 (1st Cir.
1983).
3 See Maislin Transport, 274 NLRB 529 (1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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 regular full-time and regular part-time employees
working at the Employer’s facility currently located at
5852 W. 51st Street, Chicago, Illinois; but excluding all
other employees, office clerical employees and guards,
professional employees and supervisors as defined in
the National Labor Relations Act.
On January 29, 2008, the Union was certified as the
exclusive collective-bargaining representative of the unit,
and at all times since January 29, 2008, based on Section
9(a) of the Act, the Union has been, and continues to be,
the exclusive collective-bargaining representative of the
unit.
About September 1, 2008, the Respondent and the Un-
ion entered into a collective-bargaining agreement with
respect to terms and conditions of employment of the
unit, which was to remain in effect until August 31, 2011
(the agreement).
Since about October 3, 2008, the Respondent has
failed to continue in effect all the terms and conditions of
the agreement by failing to make required contributions
to the Teamsters-National 401(k) savings plan.
Since about March 13, 2009, the Respondent has failed
to continue in effect all the terms and conditions of the
agreement by failing to pay its employees for all their
unused vacation days.
The Respondent engaged in the conduct described
above without the Union’s consent.
About March 13, 2009, the Respondent closed its Chi-
cago, Illinois facility without giving advance notice of its
decision to the Union.
About March 17, 2009, the Union, by Tom Coffey, re-
quested that the Respondent bargain collectively with the
Union about the effects of its decision to close its Chi-
cago, Illinois facility.
Since about March 17, 2009, the Respondent has failed
and refused to bargain collectively with the Union about
the effects of its decision to close its Chicago, Illinois
facility.
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 purpose of collective
bargaining.
About March 17, 2009, the Respondent repudiated the
agreement by engaging in the conduct described above.
Since about March 17, 2009, the Union, by Tom Cof-
fey, has requested that the Respondent furnish the Union
with the following information:
(i) a description of the number of unused vaca-
tion, sick, and personal days accrued by each bar-
gaining unit employee as of March 13, 2009;
(ii) documents evidencing the hours worked by
each bargaining unit employee from September 1,
2008 to March 13, 2009; and
(iii) documents evidencing the amounts paid into
the Teamsters-National 401(k) Saving Plan on each
bargaining unit employee’s behalf from September
1, 2008 to March 13, 2009.
The information requested by the Union is necessary
for, and relevant to, the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit.
Since about March 17, 2009, the Respondent has failed
and refused to furnish the Union with the information it
requested.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
failed and refused to bargain collectively and in good
faith with the exclusive collective-bargaining representa-
tive of its unit employees in violation of Section 8(a)(5)
and (1) of the Act. The Respondent’s unfair labor prac-
tices affect 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 violated Section 8(a)(5) and
(1) of the Act by repudiating its collective-bargaining
agreement with the Union and failing and refusing to
continue in effect all the terms and conditions of the
agreement by failing to make contractually-required con-
tributions to the Teamsters-National 401(k) savings plan
since about October 3, 2008, we shall order the Respon-
dent to make all such contributions that have not been
made since that date, including any additional amounts
due the plan in accordance with Merryweather Optical
Co., 240 NLRB 1213, 1216 fn. 7 (1979), and to make
whole the unit employees for any loss of interest they
may have suffered as a result of the failure to make such
payments.4 We shall also order the Respondent to reim-

4 To the extent that an employee has made personal contributions to
the 401(k) savings plan that have been accepted by the plan in lieu of
the Respondent’s delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
FUEL SYSTEMS, INC. 3
burse unit employees for any expenses ensuing from its
failure to make the contractually-required contributions,
as set forth in Kraft Plumbing & Heating, 252 NLRB
891, 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981), such amounts to be computed in the manner set
forth in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).5
In addition, having found that the Respondent has vio-
lated Section 8(a)(5) and (1) by failing and refusing to
continue in effect all the terms and conditions of the
agreement by failing to pay its employees for all their
unused vacation days, we shall order the Respondent to
make the unit employees whole for any loss of earnings
and other benefits attributable to its unlawful conduct.
All amounts due to employees shall be computed in ac-
cordance with Ogle Protection Service, supra, with inter-
est as prescribed in New Horizons for the Retarded, su-
pra.
Moreover, having found that the Respondent violated
Section 8(a)(5) and (1) by failing and refusing to furnish
the Union with relevant and necessary information re-
quested on March 17, 2009, we shall order the Respon-
dent to provide the Union with the requested informa-
tion.
Further, to remedy the Respondent’s unlawful failure
to give the Union prior notice of its decision to close its
Chicago, Illinois facility and to bargain with the Union
about the effects of its decision, we shall order the Re-
spondent 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 col-
lective-bargaining representative. 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, 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 to make
whole the unit employees for losses suffered as a result
of the violations and to re-create in some practicable
manner a situation in which the parties’ bargaining posi-

5 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 fn. 1 (2008), citing Rogers
Corp., 344 NLRB 504 (2005).
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 by Melody
Toyota, 325 NLRB 846 (1998).6
Thus, the Respondent shall pay the 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 the occurrence of the earliest of
the following conditions: (1) the date the Respondent
bargains to agreement with the Union on those subjects
pertaining to the effects of the closing of its facility 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 com-
mence 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 bar-
gain 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 its operations to the time they secured equivalent
employment elsewhere, or the date on which the Re-
spondent 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 Respondent’s employ. Backpay shall be
based on earnings which the unit employees would nor-
mally have received during the applicable period, less
any net interim earnings, and shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, supra.
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 the unit employees who were em-
ployed by the Respondent since October 3, 2008, in or-
der to inform them of the outcome of this proceeding.

6 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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ORDER
The National Labor Relations Board orders that the
Respondent, Fuel Systems, Inc., Chicago, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with International Brotherhood of Teamsters,
Local Union No. 710, as the exclusive collective-
bargaining representative for the unit described below,
about the effects on the unit employees of its decision to
close its Chicago, Illinois facility and by failing to give
the Union prior notice of its decision to close its Chi-
cago, Illinois facility. The appropriate unit is:
All regular full-time and regular part-time employees
working at the Employer’s facility currently located at
5852 W. 51st Street, Chicago, Illinois; but excluding all
other employees, office clerical employees and guards,
professional employees and supervisors as defined in
the National Labor Relations Act.
(b) Failing to make the contractually-required contri-
butions to the Teamsters-National 401(k) savings plan.
(c) Failing and refusing to pay its unit employees for
all their unused vacation days as set forth in its collec-
tive-bargaining agreement with the Union.
(d) Failing and refusing to furnish the Union with in-
formation it requested on March 17, 2009, which is rele-
vant and necessary to the Union’s performance of its
duties as the exclusive bargaining representative of the
employees in the unit.
(e) 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 about the effects on the unit employees of
its decision to close its Chicago, Illinois facility on
March 13, 2009, and reduce to writing and sign any
agreement reached as a result of such bargaining.
(b) Make all contractually-required contributions to the
Teamsters-National 401(k) savings plan that have not
been made since about October 3, 2008, including any
additional amounts due the plan, and make whole the
unit employees for any loss of interest they may have
suffered, and any expenses ensuing from its failure to
make the contractually-required contributions as set forth
in the remedy section of this decision.
(c) Pay the unit employees for all their unused vacation
days, with interest, in the manner set forth in the remedy
section of this decision.
(d) Furnish the Union with the information it requested
on March 17, 2009.
(e) Pay the unit employees their normal wages for the
period set forth in the remedy section of this decision.
(f) 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,
timecards, personnel records and reports, and all other
records, including an electronic copy of such records if
stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(g) 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”7 to the Union
and to all unit employees who were employed by the
Respondent at its Chicago, Illinois facility at any time
since October 3, 2008.
(h) 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. August 12, 2009
______________________________________
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.

7 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.”
FUEL SYSTEMS, INC. 5
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 International Brotherhood of Team-
sters, Local Union No. 710, as the exclusive collective-
bargaining representative of our unit employees about
the effects on our employees of our decision to close our
Chicago, Illinois facility and by failing to give the Union
prior notice of our decision to close our Chicago, Illinois
facility. The appropriate unit is:
All regular full-time and regular part-time employees
working at our facility currently located at 5852 W.
51st Street, Chicago, Illinois; but excluding all other
employees, office clerical employees and guards, pro-
fessional employees and supervisors as defined in the
National Labor Relations Act.
WE WILL NOT fail and refuse to make contractually-
required contributions to the Teamsters-National 401(k)
savings plan.
WE WILL NOT fail and refuse to pay our unit employees
for all their unused vacation days as set forth in our col-
lective-bargaining agreement with the Union.
WE WILL NOT fail and refuse to furnish the Union with
information that is relevant and necessary to its role as
the exclusive collective-bargaining representative of the
employees in the unit.
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 about the effects on our unit em-
ployees of our decision to close our Chicago, Illinois
facility, and reduce to writing and sign any agreement
reached as a result of such bargaining.
WE WILL make all contractually-required contributions
to the Teamsters-National 401(k) savings plan that have
not been made since October 3, 2008, including any ad-
ditional amounts due the plan, and WE WILL make whole
our unit employees for any loss of interest they may have
suffered and any expenses ensuing from our failure to
make the contractually-required contributions.
WE WILL pay our unit employees for all their unused
vacation days, with interest.
WE WILL furnish the Union with the information it re-
quested on March 17, 2009.
WE WILL pay our unit employees their normal wages
for the period set forth in the Decision and Order of the
National Labor Relations Board, with interest.
FUEL SYSTEMS, INC.