S K Hand Tool, as a debtor in possession

National Labor Relations Board - Board Decisions

Mar 24, 2011

356 NLRB No. 117 (N.L.R.B. 2011)

356 NLRB No. 117
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.
SK Hand Tool, as a Debtor in Possession and Interna-
tional Brotherhood of Teamsters Local Union
743, AFL–CIO. Cases 13–CA–46119 and 13–
CA–46298
March 24, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
The Acting General Counsel seeks a default judgment
in this case on the ground that SK Hand Tool, as a
Debtor in Possession (the Respondent), has failed to file
an answer to the consolidated complaint and compliance
specification. Upon a charge and amended charges filed
by the Union on July 1, September 17, and November
23, 2010, the Acting General Counsel issued an order
consolidating cases, consolidated complaint, and notice
of hearing on November 30, 2010, alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
Thereafter, on December 21, 2010, the Acting General
Counsel issued an order consolidating consolidated com-
plaint and compliance specification and notice of hear-
ing. The Respondent failed to file an answer to either the
consolidated complaint or to the consolidated complaint
and compliance specification.
On January 28, 2011, the Acting General Counsel filed
a Motion for Default Judgment with the Board. Thereaf-
ter, on January 31, 2011, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in 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 the consolidated complaint and compliance specifi-
cation, affirmatively stated that the Board may find, pur-
suant to a motion for default judgment, that the allega-
tions in the consolidated complaint are true unless an
answer was received by December 14, 2010, for the con-
solidated complaint, or by January 11, 2011, for the con-
solidated complaint and compliance specification. Fur-
ther, the undisputed allegations in the Acting General
Counsel’s motion disclose that the Region, by letter
dated January 13, 2011, notified the Respondent that
unless an answer was received by January 20, 2011, a
motion for default judgment would be filed. Neverthe-
less, the Respondent failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the Acting General
Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
Since about June 29, 2010, the Respondent has been a
debtor-in-possession with full authority to continue its
operations and to exercise all powers necessary to admin-
ister its business.
At all material times, the Respondent, an Illinois cor-
poration with an office and place of business in Chicago,
Illinois, has been engaged in the business of manufactur-
ing and shipping tools. During the 12-month period pre-
ceding the issuance of the consolidated complaint, the
Respondent, in conducting its business operations de-
scribed above, purchased and received at its Chicago
facility goods and services valued in excess of $50,000
from points located outside the State of Illinois. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that the International Brotherhood of Team-
sters Local Union 743, AFL–CIO (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:
Claude Fugar President
Bella Keigher Human Resources 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:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
All Production, Maintenance and Warehouse employ-
ees, but excluding office clerical employees, office
janitors, all other employees, timekeepers, time study
men, professional employees, watchmen, guards and
supervisors as defined by the National Labor Relations
Act for its plant located at 3535 West 47th Street, Chi-
cago, Illinois.
At all times since October 14, 1968, based on Section
9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the unit.
About November 3, 2009, the Union and the Respon-
dent reached complete agreement on terms and condi-
tions of employment of the unit to be incorporated in a
collective-bargaining agreement.
Since February 15, 2010, the Union has requested that
the Respondent execute a written contract containing the
agreement described above.
Since June 29, 2010, the Respondent, by Bella
Keigher, has failed and refused to execute the agreement
described above.
On June 29, 2010, the Respondent failed to continue in
effect all the terms and conditions of the agreement, by
failing, pursuant to section 1, article XV, of the collec-
tive-bargaining agreement, to pay vacation pay owed to
the bargaining unit employees named below:
Botrice, Sami Neff, Julia
Cobar, Julio Oliveras, Jose
Del Real, Everardo T. Pope, Sam
Flig, Czeslaw Prach, Kim Sour
Fox, Joseph Ramirez, Fernando
Gavatski, Dejan Ramirez, Salvador
Jaquez, Ana Rodriguez, Maria S.
Khuu, Cao Roman, Francisco J.
Kobek, Joseph Seidler, Kenneth J.
Kulik, Zoltan M. Spiewak, Terrance
Marusarz, Wladyslaw Terry, Freddie
Napiorlowska, Margaret Trinidad, Norma
The subject in the preceding paragraph relates to
wages, hours, and other terms and conditions of em-
ployment of the unit and is a mandatory subject for the
purposes of collective bargaining. The Respondent en-
gaged in this conduct described above without the Un-
ion’s consent.
CONCLUSION OF LAW
By failing to execute a written contract and failing to
pay contractually-required vacation pay to unit employ-
ees, the Respondent has been failing and refusing to bar-
gain collectively and in good faith with the exclusive
collective-bargaining representative of its employees
within the meaning of Section 8(d) of the Act in violation
of Section 8(a)(5) and (1). The Respondent’s unfair la-
bor practices 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) by failing, since June 29, 2010, to execute the collec-
tive-bargaining agreement reached on November 3,
2009, we shall order the Respondent to execute and im-
plement the agreement and give retroactive effect to its
terms. In addition, having found that the Respondent
violated Section 8(a)(5) and (1) by failing to continue in
effect all the terms and conditions of the collective-
bargaining agreement with respect to section 1, article
XV, by failing to pay vacation pay owed to the employ-
ees in the bargaining unit, we shall order the Respondent
to make the employees whole by paying them the
amounts set forth in attachment A of the consolidated
complaint and compliance specification, plus interest
accrued to the date of payment at the rate prescribed in
New Horizons for the Retarded, 283 NLRB 1171 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB No. 8 (2010), and minus tax
withholdings required by Federal and State laws.
ORDER
The National Labor Relations Board orders that the
Respondent, SK Hand Tool, as a Debtor in Possession,
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 the International Brotherhood of Team-
sters Local 743, AFL–CIO, as the exclusive collective-
bargaining representative of the following unit, by failing
and refusing to execute the collective-bargaining agree-
ment reached on November 3, 2009, regarding the terms
and conditions of employment of the unit employees.
The unit is:
All Production, Maintenance and Warehouse employ-
ees, but excluding office clerical employees, office
SK HAND TOOL 3
janitors, all other employees, timekeepers, time study
men, professional employees, watchmen, guards and
supervisors as defined by the National Labor Relations
Act for its plant located at 3535 West 47th Street, Chi-
cago, Illinois.
(b) Failing and refusing to continue in effect all the
terms and conditions of the November 3, 2009 collec-
tive-bargaining agreement with respect to section 1, arti-
cle XV, by failing since June 29, 2010, to pay vacation
pay owed to the employees in the bargaining unit.
(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) Execute and implement the collective-bargaining
agreement reached on November 3, 2009, and give retro-
active effect to the agreement’s terms and conditions of
employment.
(b) Make whole the following unit employees for the
Respondent’s failure since June 29, 2010, to continue in
effect its November 3, 2009 collective-bargaining
agreement with the Union with respect to section 1, arti-
cle XV, concerning vacation pay owed to the employees,
by paying them the total amounts following their names,
plus interest accrued to the date of payment, as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB No. 8 (2010),
and minus tax withholdings required by Federal and
State laws:
Name Gross Vacation Pay Due
Alarcon Eulalio $ 446.72
Barrios, Irma 925.76
Botrice, Sami 1,968.40
Cobar, Julio 385.28
Del Real, Everardo T. 744.40
Flig, Czeslaw 450.72
Fox, Joseph 302.08
Gavatski, Dejan 1,198.40
Hall, William 80.80
Jacelymabak, A. 808.00
Jaquez, Ana 812.88
Johnson, James 185.00
Khuu, Cao 96.00
Kobek, Joseph 1,438.80
Kulik, Zoltan M. 457.60
Lesnicki, Maria B. 1,123.02
Martinez, Maria 404.00
Marusarz, Wladyslaw 1,544.80
Napiorlowska, Margaret 1,536.00
Neff, Julia 2,296.00
Negron, Marta M. 1,639.68
Oliveras, Jose 3,238.72
Pope, Sam 602.40
Prach, Kim Sour 2,228.80
Ptaszynski, Stanislaw 2,232.00
Ramirez, Fernando 274.56
Ramirez, Salvador 727.20
Rodriguez, Maria S. 400.56
Roman, Francisco J. 1,289.28
Seidler, Kenneth J. 324.00
Spiewak, Terrance 409.68
Talowski, Anna 792.80
Terry, Freddie 1,642.80
Trinidad, Norma 471.04
Wolny, Andrew E. 4,102.00
TOTAL: $37,580.18
(c) Within 14 days after service by the Region, post at
its facility in Chicago, Illinois, copies of the attached
notice marked “Appendix.”1 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.2
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since June 29, 2010.

1 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
2 Consistent with our recently issued decision in J. Picini Flooring,
356 NLRB No. 9 (2010), we have ordered the Respondent to distribute
the notice electronically if it is customarily communicating with em-
ployees by such means. For the reasons stated in his dissenting opinion
in J. Picini Flooring, Member Hayes would not require electronic
distribution of the notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(d) 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. March 24, 2011
Wilma B. Liebman, Chairman
Craig Becker, Member
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED 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 post 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 the International Brotherhood of
Teamsters Local 743, AFL–CIO, as the exclusive collec-
tive-bargaining representative of the employees in the
following unit, by failing and refusing to execute the
collective-bargaining agreement reached on November 3,
2009, regarding your terms and conditions of employ-
ment. The unit is:
All Production, Maintenance and Warehouse employ-
ees, but excluding office clerical employees, office
janitors, all other employees, timekeepers, time study
men, professional employees, watchmen, guards and
supervisors as defined by the National Labor Relations
Act for our plant located at 3535 West 47th Street, Chi-
cago, Illinois.
WE WILL NOT fail and refuse to continue in effect all
the terms and conditions of the collective-bargaining
agreement reached on November 3, 2009, with respect to
section 1, article XV, by failing since June 29, 2010, to
pay vacation pay owed to you.
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 execute and implement the collective-
bargaining agreement reached on November 3, 2009, and
give retroactive effect to its terms and conditions of em-
ployment.
WE WILL make whole the unit employees named in the
Board’s Decision and Order for our failure since June 29,
2010, to continue in effect our November 3, 2009 collec-
tive-bargaining agreement with the Union with respect to
section 1, article XV, concerning vacation pay, by paying
them the amounts set forth in the Board’s Decision and
Order, plus interest accrued to the date of payment, and
minus tax withholdings required by Federal and State
laws.
SK HAND TOOL, AS A DEBTOR IN POSSESSION