Acme Press

National Labor Relations Board - Board Decisions

Dec 31, 2008

353 N.L.R.B. 73 (N.L.R.B. 2008)

353 NLRB No. 73
Capital District Enterprises, Inc. d/b/a Acme Press
and Graphic Communications Confer-
ence/International Brotherhood of Teamsters,
Local 259-M. Case 3–CA–26828
December 31, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by the
Union on August 28, 2008, the General Counsel issued
the complaint on October 30, 2008, against Capital Dis-
trict Enterprises, Inc. d/b/a Acme Press, the Respondent,
alleging that it has violated Section 8(a)(5) and (1) of the
Act. The Respondent failed to file an answer.
On December 5, 2008, the General Counsel filed a
Motion for Default Judgment with the Board. Thereaf-
ter, on December 10, 2008, 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 allegations 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 the answer must be received by the Regional Office
on or before November 13, 2008, and that if no answer
was filed, the Board may find, pursuant to a motion for
default judgment, that the allegations in the complaint
are true. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that by letter dated No-
vember 17, 2008, the Region notified the Respondent
that unless an answer was received by close of business
on November 24, 2008, a motion for default judgment
would be filed. Nevertheless, the Respondent failed to
file an answer to the complaint.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Default Judgment.

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 Schaumber and Member Liebman 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.
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 located in
Schenectady, New York (Schenectady, New York facil-
ity), has been engaged in the business of commercial
offset printing. During the 12-month period preceding
the issuance of the complaint, the Respondent, in con-
ducting its business operations described above, provided
services valued in excess of $50,000 to the State of New
York, which is engaged in interstate commerce.
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 Graphic Communications Confer-
ence/International Brotherhood of Teamsters, Local 259-
M, 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, David Giminiani held the posi-
tion of the Respondent’s president, and has been a super-
visor of the Respondent within the meaning of Section
2(11) of the Act and an agent of the Respondent within
the meaning of Section 2(13) of the Act.
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 performing bargaining unit work of the
type described in Article 5 of the collective-bargaining
agreement between the Union and Respondent, in ef-
fect from May 6, 2003 through May 5, 2006.
At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
the unit and the Union has been recognized as the repre-
sentative by the Respondent. This recognition has been
embodied in successive collective-bargaining agree-
ments, the most recent of which was effective by its
terms from May 6, 2003, through May 5, 2006, and
which was extended by the agreement of the parties from
May 6, 2007, through May 5, 2008.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
On about August 22, 2008, the Respondent ceased op-
erations at its Schenectady, New York facility.
Since about August 22, 2008, the Respondent failed to
pay bargaining unit employees their vacation pay, as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
required by article 17, sections 4 and 5 of the collective-
bargaining agreement.2
The subject set forth above relates to wages, hours, and
other terms and conditions of employment of the unit and
is a mandatory subject for the purpose of collective bar-
gaining. The Respondent engaged in the conduct de-
scribed above without notice to the Union and without
providing the Union with an opportunity to bargain.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) 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 violated Section 8(a)(5) and
(1) by failing to pay unit employees their vacation pay
since August 22, 2008, we shall order the Respondent to
make the unit employees whole by paying them the vaca-
tion pay that has not been paid to them since that date.
All payments to employees shall be computed in the
manner set forth in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in-
terest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).3
In view of the fact that the Respondent has ceased op-
erations at its Schenectady, New York facility, we shall
order the Respondent to mail a copy of the attached no-
tice to the Union and to the last known addresses of the
unit employees who were employed by the Respondent
on or after August 22, 2008, in order to inform them of
the outcome of this proceeding.

2 Although there is no indication that the parties further extended
their contract beyond May 5, 2008, the Board has long held that terms
and conditions of employment established in a collective-bargaining
agreement, such as vacation pay, survive expiration of the contract and
cannot be changed by the employer without first bargaining to impasse
with the union. See NLRB v. Katz, 369 U.S. 736 (1962); The Pantry
Restaurant, 341 NLRB 243, 244 (2004) (vacation pay survives expira-
tion of contract and cannot be changed by the employer without first
bargaining to impasse).
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 No. 69, slip op. at 1 fn. 1 (2008),
citing Rogers Corp., 344 NLRB 504 (2005).
ORDER
The National Labor Relations Board orders that the
Respondent, Capital District Enterprises, Inc. d/b/a Acme
Press, Schenectady, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Graphic
Communications Conference/International Brotherhood
of Teamsters, Local 259-M, as the exclusive collective-
bargaining representative of the employees in the unit set
forth below, by failing to pay unit employees their vaca-
tion pay. The unit is:
All employees performing bargaining unit work of the
type described in Article 5 of the collective-bargaining
agreement between the Union and Respondent, in ef-
fect from May 6, 2003 through May 5, 2006.
(b) 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) Make whole the unit employees by paying them the
vacation pay that has not been paid to them since August
22, 2008, with interest, as set forth in the remedy section
of this decision.
(b) 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.
(c) 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”4 to the Union
and to all unit employees who were employed by the
Respondent at any time on or after August 22, 2008.
(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 the Respondent has taken to comply.

4 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.”
ACME PRESS 3
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 refuse to bargain collectively with
Graphic Communications Conference/International
Brotherhood of Teamsters, Local 259–M, as the exclu-
sive collective-bargaining representative of our employ-
ees in the unit set forth below, by failing to pay unit em-
ployees their vacation pay. The unit is:
All employees performing bargaining unit work of the
type described in Article 5 of the collective-bargaining
agreement between the Union and Acme Press, in ef-
fect from May 6, 2003 through May 5, 2006.
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 make whole our unit employees by paying
them the vacation pay that has not been paid to them
since August 22, 2008, with interest.
CAPITAL DISTRICT ENTERPRISES, INC. D/B/A
ACME PRESS