Modern Angel, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1216 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Modern Angel, Inc. and Upholsterers International
Union of North America, Local No. 15, AFL-
CIO. Case 21-CA-19517
September 30, 1981
DECISION AND ORDER
By MEMBIRS FANNING, JENKINS, AND
ZIMMERMAN
Upon an original charge and a first amended
charge filed on September 5 and November 13,
1980, respectively, by Upholsterers International
Union of North America, Local No. 15, AFL-
CIO, herein the Union, and duly served on Modern
Angel, Inc., herein the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 21, issued a com-
plaint and notice of hearing and an amendment to
complaint on October 31, and November 20, 1980,
respectively, against Respondent, alleging that Re-
spondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and (5) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge, amended
charge, and complaint and notice of hearing before
an administrative law judge and amended com-
plaint were duly served on the parties to this pro-
ceeding. Respondent failed to file an answer to the
complaint or to the amendment to the complaint.
On June 29, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment based on Respondent's failure to
file an answer as required by Sections 102.20 and
102.21 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended.' Sub-
sequently, on July 13, 1981, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent did not file a response to the
The Credit Managers Association of Southern Califirnia, represent-
ing itself as Assignee for the Benefits of Creditors of Modern Angel. Inc.
(hereafter Assignee), filed an answer to the complaint ad to the amend-
ed complaint on November 6 and Decemher 1 98() respectively Indi-
catillng that it was answering "for itself and itself alone," the Assignee
denied the complaint allegations. In so doing. the Assignee specifically
acknosledged that it lacked infiormation and belief sufficient to enable it
to respotnd to certain allegatiolns As all affirmative defense, the Assignee
asserted iter alia. that it is all improper party in this action, and thal the
complailt fails it state facts against the Assignee for the purpose (of a
cause of actionl
The General Counsel has filed a nmoion to strike the ansaers filed bh
the Assignee. Thus. the General Counsel pints out that the Assignee
was ot named as a respiondelit in either the charges or the complaint or
amendment to the compla int Further, the General Counlsel poinlts out
that tile Assignee. who filed its anwsers "on behalf of itself and itself
alone," is neither a party nor a successor to a party in this action ence,
the General Counsel moved that the Assignee's answers be stricken
We find merit in the General Counsel's motion and we hereby strike
the Assignee's answers.
258 NLRB No. 162
Notice To Show Cause and, accordingly, the alle-
gations of the complaint stand uncontroverted.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent 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 answer
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 and an
amendment to complaint issued on October 31, and
November 20, 1980, respectively, specifically state
that unless an answer was filed within 10 days from
the 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 General
Counsel further submitted, as recited in the Board's
Notice To Show Cause, that Respondent was noti-
fied of its failure to file an answer to the complaint
and amendment to complaint as required, and that
summary judgment would be sought unless an
answer to the complaint was filed. 2 As noted
above, Respondent has not filed an answer to the
complaint, as amended, nor did it respond to the
Notice To Show Cause. No good cause to the con-
trary having been shown, in accordance with the
rules set forth above, the allegations of the com-
plaint, as amended, are deemed to be admitted and
are found to be true. Accordingly, we grant the
General Counsel's Motion for Summary Judg-
ment.3
'This further notice was contained in a letter dated June 9 1481, from
the Genleral Counsel to counsel fr Respondent On June II) 1981, the
General Counsel was advised by telephone by Responden'ts counsel that
Respondent had no intention of answering the allegations of the com-
plaint or the amendment to the complaint.
3 Eag/ Truck and T'ailer Rental Division of E 7 & T Leas'ing, Inc.,
211 NLRB 804 (1974); Yates Drywall, Inc., 256 NLRB 591 (1981).
1216
MODERN ANGEL, INC.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a cor-
poration with its facility at 7300 Compton Boule-
vard, Paramount, California, has been engaged in
the manufacture and distribution of upholstered
furniture. In the normal course and conduct of its
business operations, Respondent annually sells and
ships goods and products valued in excess of
$50,000 directly from suppliers located outside the
State of California.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Upholsterers International Union of North
America, Local No. 15, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees in-
cluding truckdrivers; excluding office clerical
employees, professional employees, guards,
and supervisors as defined in the Act.
On November 21, 1963, the Union was certified
as the exclusive collective-bargaining representative
of the employees in the appropriate unit. At all
times since November 21, 1963, the Union has
been, and is now, the exclusive representative of
the employees in the appropriate unit for the pur-
poses of collective-bargaining with respect to rates
of pay, wages, hours of employment, and other
terms and conditions of employment.
On or about August 30, 1980, Respondent dis-
continued operations of its facility in Paramount,
California, and permanently laid off the employees
in the appropriate unit. Respondent engaged in
such conduct without prior notice to the Union
and without having afforded the Union an opportu-
nity to negotiate and bargain as the exclusive rep-
resentative of Respondent's employees in the
above-described unit with respect to the effects of
the decision to discontinue operations and perma-
nently lay off such employees.4
We find that by the aforesaid conduct Respond-
ent has refused to bargain collectively with the
Union as the exclusive representative of the em-
ployees in the appropriate unit and that such con-
duct violated Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR I.ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectu-
ate the policies of the Act.
We shall also order that Respondent bargain
with the Union over the effect on its employees of
the discontinuance of its operations. It is clear,
however, that a bargaining order alone cannot fully
remedy the unfair labor practices committed by
Respondent because, as a result of Respondent's
failure to bargain with the Union about the effects
of discontinuing operations, Respondent's employ-
ees were denied an opportunity to bargain through
their exclusive representative at a time when such
bargaining would have been meaningful. Meaning-
ful bargaining cannot now be assured until some
measure of economic strength is restored to the
Union. Accordingly, in order to effectuate the pur-
poses of the Act, we shall accompany our order to
bargain with a limited backpay requirement de-
signed both to make whole the unit employees who
were on the payroll on August 30, 1980, for losses
suffered as a result of the violation and to recreate
in some practicable manner a situation in which the
parties' bargaining position is not entirely devoid of
To the extent hat pars 8(al. 8(h). and ') of the complaints. as iilend-
ed. appear to allege a separate iolalionl of Sec 8(a)(5) of he Act h ! Re-
,pondenl' , failure to notllfy the Lnion aind argain about the decilhlll to
close the frcilit. ;is opposed to the effects of ,uch decision. soe dens the
Molion for Surnmar Judgmenll and dismiss those allegations of 1il .oril-
plaint S Summllit hrilg (ompanoy. 195 NL RB 47q. 4() (1721
We ote that there is no allegaon hIcre that the closing of it . ltth
COtistitiled a, pilrtial cl.osing of Respmdentlt' htlsiues Sie - r \ :, !l
ait na,'e,, (Corp,,rmn i \ I. R . I)(' I.RRM 2705, )1 C 1!X()5
(JtitlC 22 18XI) Nor is there /1i1 a.Jiglllg )ti that Responitentl i 1 solat, l SC,
R(a)(3) of the Act h ils inig o tthe uit Ili plo Xes
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic consequences for Respondent. We shall
do so in this case by requiring Respondent to pay
backpay to its employees in a manner similar to
that required in Transmarine Navigation Corporation
and its Subsidiary, International Terminals. Inc., 170
NLRB 389 (1968).5 As in Transmarine, we shall re-
quire that the backpay for those employees be not
less than the amounts they would have earned
during a 2-week period of employment.6
Accordingly, we shall order Respondent to bar-
gain upon request with the Union about the effects
on its employees of the discontinuance of its oper-
ations; and to pay these employees amounts at the
rate of their normal wages when last in Respond-
ent's employ from 5 days after the date of this De-
cision and Order until the occurrence of the earli-
est of the following conditions: (1) the date Re-
spondent bargains to agreement with the Union on
those subjects pertaining to the effects of Respond-
ent's discontinuance of its operations; (2) a bona
fide impasse in bargaining; (3) the failure of the
Union to request bargaining within 5 days of this
Decision and Order, or to commence negotiations
within 5 days of Respondent's notice of its desire
to bargain with the Union; or (4) the subsequent
failure of the Union to bargain in good faith; but in
no event shall the sum paid to any of these em-
ployees exceed the amount each would have
earned as wages from the time Respondent discon-
tinued its operations to the time each secured
equivalent employment elsewhere, or the date on
which Respondent shall have offered to bargain,
whichever occurs first, provided, however, in no
event shall this sum be less than such employees
would have earned for a 2-week period at the rate
of their normal wages when last in Respondent's
employ. Backpay shall be based on earnings which
the discharged employees would normally have re-
ceived during the applicable period, less any net in-
terim earnings, and shall be computed on a quarter-
ly basis in the manner set forth in F W. Woolworth
Company, 90 NLRB 289 (1950), with interest there-
on computed in the manner provided in Florida
Steel Corporation, 231 NLRB 651 (1977). 7 See, gen-
erally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
'See also Vatiolnal family Opinion. Inc., 246 NLRB 521, fn. 5 (1979).
a Member Jenkins' dissent in 7raunmarine was limited to the portion of
the remedy establishing the minimum amounlt of backpay to be "not less
than" 2 weeks' pay. He notes that he remedy with that provision has
been accepted by the courts and he itds hat some type (lf remedy for
the misconduct here is needed. Hence, he joins the remedy provided
here
7 Member Jenkins would compute interest on backpay in accordance
with his partial dissent in Oi'mpiw .cfedical Corporation. 250 NI RB 146,
148 (19801)
CONCLUSIONS OF LAW
1. Modern Angel, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Upholsterers International Union of North
America, Local No. 15, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. All production and maintenance employees in-
cluding truckdrivers; excluding office clerical em-
ployees, professional employees, guards and super-
visors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has
been the exclusive representative of all the employ-
ees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By failing and refusing to afford the Union an
opportunity to negotiate and bargain as the exclu-
sive representative of the employees in the above-
described appropriate unit concerning the effects of
discontinuing operations of its facility at 7300
Compton Boulevard, Paramount, California, and
permanently laying off said employees, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Modern Angel, Inc., Paramount, California, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in
good faith with Upholsterers International Union
of North America, Local No. 15, AFL-CIO, as the
exclusive representative of its employees in the fol-
lowing appropriate unit set forth below concerning
the effects of the discontinuance of operations at its
Paramount, California, facility and permanent
layoff of the employees in the following appropri-
ate unit:
All production and maintenance employees in-
cluding truckdrivers; excluding office clerical
employees, professional employees, guards and
supervisors as defined in the Act.
1218
MODERN ANGEL. INC.
(b) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the purposes of the
Act:
(a) Upon request, bargain collectively with the
Upholsterers International Union of North Amer-
ica, Local No. 15, AFL-CIO, as the exclusive bar-
gaining representative of all employees in the ap-
propriate unit set forth above with respect to the
effects of the decision to discontinue operations of
its facility in Paramount, California, including the
permanent layoff of the unit employees. Any un-
derstanding reached shall be embodied in a signed
agreement.
(b) Pay the laid-off employees their normal
wages in the manner and for the period set forth in
the remedy section of this Decision and Order.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility in Paramount, California,
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 21, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Mail to all employees who were on Respond-
ent's payroll on August 30, 1980, at their last
known mailing address copies of the attached
notice.
(f) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint
herein be dismissed insofar as it alleges violations
of the Act not specifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail and refuse to bargain col-
lectively in good faith with Upholsterers Inter-
national Union of North America, Local No.
15, AFL-CIO, as the exclusive bargaining rep-
resentative of our employees in the appropriate
unit described below concerning the effects of
the decision to discontinue operations of our
facility at 7300 Compton Boulevard, Para-
mount, California, and the permanent layoff of
unit employees. The appropriate unit is:
All production and maintenance employees
including truckdrivers; excluding office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights under Section 7 of the Act.
WE WILL, upon request, bargain in good
faith with the Union as the exclusive bargain-
ing, representative of all employees in the ap-
propriate unit described above, with respect to
the effects of the decision to discontinue oper-
ations and permanently lay off the unit em-
ployees of our Paramount, California, facility.
WE Wll pay the laid-off employees their
normal wages plus interest for a period re-
quired by the Decision and Order of the Na-
tional Labor Relations Board.
WE WIl.l make available to the Union the
needed economic information and forthwith
begin to bargain with the Union in the manner
described above.
MODERN ANGE., INC.
" In the event that this Order is enfrced hy a Judgment of a United
States Court of Appeal. the words in the nortice reading "Posted bs
Order of the National labor Relations Board" shall read "Posted PurSu-
ant to a Judgment of the United States Court of Appeals Eforcing an
Order of the National Labor Relations Board"
1219