Austin Printing Co.

National Labor Relations Board - Board Decisions

Nov 28, 2008

353 N.L.R.B. 54 (N.L.R.B. 2008)

353 NLRB No. 54
Austin Printing Co. and Graphic Communications
Union Local 546M, GCC/IBT. Case 8–CA–37449
November 28, 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 amended complaint and compliance
specification. Upon a charge and an amended charge
filed by the Union on October 9, 2007, and March 25,
2008, respectively, the General Counsel issued an
amended complaint, compliance specification and notice
of hearing on June 4, 2008, against Austin Printing, Inc.,
the Respondent, alleging that it has violated Section
8(a)(5) and (1) of the Act. The Respondent failed to file
an answer.
On September 15, 2008, the General Counsel filed a
Motion for Default Judgment and Memorandum in Sup-
port with the Board. Thereafter, on September 17, 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 re-
sponse. The allegations in the motion are therefore un-
disputed.1
Ruling on Motion for Default Judgment2
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. Similarly, Section 102.56 of the Board’s Rules

1 The original complaint issued on November 30, 2007. The Re-
spondent filed an answer to the complaint on December 14, 2007.
However, on March 25, 2008, the Union filed an amended charge and
the General Counsel issued an amended complaint, compliance specifi-
cation and notice of hearing on June 4, 2008, advising the Respondent
of its obligation to file an answer to the amended complaint and com-
pliance specification. On July 11, 2008, the Respondent’s attorney
advised the Region that it would not be responding to the amended
complaint and compliance specification. By letter dated July 25, 2008,
the Respondent’s counsel withdrew its December 14, 2007 answer to
the original complaint. 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. See Maislin Transport, 274 NLRB 529
(1985).
2 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.
and Regulations provides that the allegations in a com-
pliance specification will be taken as true if an answer is
not filed with 21 days from the service of the compliance
specification. In addition, the amended complaint and
compliance specification affirmatively stated that the
Respondent’s answer must be received by the Regional
Office on or before June 18, 2008. Further, the undis-
puted allegations in the General Counsel’s motion dis-
close that the Region, by letter dated July 3, 2008, noti-
fied the Respondent that unless an answer to the
amended complaint and compliance specification was
received by July 10, 2008, a motion for default judgment
would be filed. Nevertheless, 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 General Coun-
sel’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, an Ohio corpo-
ration, with an office and place of business in Akron,
Ohio, has been engaged in the printing business. During
the 12-month period preceding the issuance of the
amended complaint and compliance specification, the
Respondent, in conducting its operations described
above, sold and shipped goods valued in excess of
$50,000 directly to points outside the State of Ohio. 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 Graphic Communications Union Local
546M, GCC/IBT, 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:
Michael Klein President
Paul Zawistowski Chief Financial Officer
Mark Aczel Plant Manager
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All full-time and regular part-time pressroom operators,
pressroom assistants, bindery employees, shippers and
maintenance employees, but excluding all office cleri-
AUSTIN PRINTING CO. 2
cal employees, guards and supervisors as defined in the
Act.
Since at least November 1, 2006, the Union has been
the designated exclusive collective-bargaining represen-
tative of the unit and, since at least that date, the Union
has been recognized as the representative by the Respon-
dent. This recognition has been embodied in an agree-
ment which is effective from January 1, 2007, to Decem-
ber 31, 2008.
At all times since November 1, 2006, based on Section
9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the unit.
Beginning in the later part of September 2007 and con-
tinuing through October 4, 2007, the Respondent ceased
its business and discontinued its operations at its Akron,
Ohio facility.
The Respondent engaged in the acts and conduct de-
scribed above without having afforded the Union timely
notice or an opportunity to bargain as the exclusive rep-
resentative of the employees in the unit over the effects
of the termination of its operations at its Akron, Ohio
facility.
The subject set forth above relates to the wages, hours,
and other terms and conditions of employment of the
unit, and is a mandatory subject for the purpose of col-
lective bargaining.
On about October 1, 2007, the Union requested that
the Respondent furnish it with the following information:
1. Whether or not the Company is planning to
shut down production operations at its facil-
ity, and, if so, the effective date of such a shut
down?
2. In the event the Company plans to shut down
operations, what steps is the Company taking
to assure employees will receive payment of
all wages owed?
3. In the event the Company plans to shut down
operations, what steps is the Company taking
to assure employees will receive all severance
benefits owed as provided for under Article
15 of the Collective Bargaining Agreement.
4. What is the current status of medical insur-
ance coverage for employees? In the event of
a shut down of operations, will COBRA
benefits be available?
5. In the event the Company plans to shut down
operations, what steps is the Company taking
to assure employees that they will receive all
earned and accrued vacation pay?
6. The amount of any unused vacation available
to each employee as of October 1, 2007.
The information requested by the Union is necessary
for, and relevant to, the Union’s performance of its duties
as the exclusive bargaining representative of the unit.
Since about October 1, 2007, the Respondent has failed
and refused to furnish the Union with the information
requested by it.
Since about October 4, 2007, when the Respondent
ceased its operations, the Respondent failed to continue
in effect all the terms and conditions of its collective-
bargaining agreement described above, with respect to
article 12 concerning vacation pay for employees and
article 15 concerning severance pay for employees in the
event that the Respondent suspends its operations. The
Respondent engaged in the acts and conduct described
above without the consent of the Union.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its 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) by failing, since October 4, 2007, to continue in ef-
fect all the terms and conditions of its January 1, 2007, to
December 31, 2008 collective-bargaining agreement with
the Union with respect to article 12 concerning vacation
pay and article 15 concerning severance pay for employ-
ees in the event the Respondent’s operations are sus-
pended, and by failing to provide a meaningful opportu-
nity to bargain about the effects of its decision to cease
business and discontinue operations at its Akron, Ohio
facility, we shall order the Respondent to make the em-
ployees whole by paying them the amounts set forth in
the compliance specification, as corrected below, plus
interest accrued to the date of payment as set forth in
New Horizons for the Retarded, 283 NLRB 1173 (1987),
and minus tax withholdings required by Federal and
State laws.3

3 In the compliance specification, the General Counsel set forth the
backpay amount owed, with interest calculated through May 31, 2008,
using a compound interest formula. As we have indicated in prior
cases, we are not prepared at this time to deviate from our current prac-
tice of assessing simple interest. See, e.g., Wilshire Plaza Hotel, 353
NLRB No. 29, slip op. at 1 fn. 2 (2008); Case Farms of North Caro-
AUSTIN PRINTING CO. 3
Further, 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 October 1, 2007, we shall order the Respon-
dent to provide the Union with the requested informa-
tion.
To remedy the Respondent’s unlawful failure to bar-
gain with the Union about the effects of its decision to
cease its business and discontinue its operations, we shall
order the Respondent to bargain with the Union, on re-
quest, about the effects of that decision. As a result of
the Respondent’s unlawful conduct, however, the unit
employees have been denied an opportunity to bargain
through their collective-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 commit-
ted.
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 recreate in some practicable
manner a situation in which the parties’ bargaining posi-
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).
Pursuant to Transmarine, the Respondent typically
would be required to pay its unit employees backpay at
the rate of their normal wages when last in the Respon-
dent’s employ from 5 days after the date of this Decision
and Order until the occurrence of the earliest of the fol-
lowing conditions: (1) the date the Respondent bargains
to agreement with the Union on those subjects pertaining
to the effects of ceasing its business and discontinuing its

lina, Inc., 353 NLRB No. 26, slip op. at 7 fn. 21 (2008); Postar Coal
Co., 353 NLRB No. 17, slip op. at 2 fn. 3 (2008); Dietrich Industries,
353 NLRB No. 7, slip op. at 1 fn. 5 (2008); Post Tension of Nevada,
Inc., 352 NLRB No. 131, slip op. at 1 fn. 2 (2008); Woodbury Partners,
LLC, 352 NLRB No. 127, slip op. at 5 fn. 15 (2008); Carpenters Local
687 (Convention & Show Services), 352 NLRB No. 119, slip op. at 1
fn. 2 (2008); Glen Rock Ham, 352 NLRB No. 69, slip op. at 1 fn. 1
(2008); Rogers Corp., 344 NLRB 504 (2005). Accordingly, the calcu-
lation of amounts owed included in the compliance specification more
appropriately would have been based on simple interest. The General
Counsel, of course, is free to continue to request that any monetary
remedy include interest compounded on a quarterly basis, should he so
choose. See, e.g., Mays Electric Co., 352 NLRB No. 49, slip op. at 3
fn. 7 (2008).
operations 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 commence 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 bargain in good faith.
Transmarine provides that the sum paid to these unit
employees may not exceed the amount they would have
earned as wages from the date on which the Respondent
ceased doing business at the facility to the time they se-
cured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner. However, Trans-
marine further provides that in no event shall this sum be
less than the unit employees would have earned for a 2-
week period at the rate of their normal wages when last
in the Respondent’s employ. Backpay is typically based
on earnings which the unit employees would normally
have received during the applicable period, less any net
interim earnings, and is computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as set forth in New Horizons for the Retarded, supra.
Here, in the circumstances of the Respondent’s cessa-
tion of operations, the General Counsel in the amended
complaint and compliance specification seeks only the
minimum 2 weeks of backpay due the terminated em-
ployees under Transmarine. Appendix A of the
amended complaint and compliance specification sets
forth the amount due each employee. We shall grant the
General Counsel’s request and order the Respondent to
pay those amounts, as corrected below, to the discrimina-
tees, plus interest accrued to the date of payment.
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 its former unit employees in order to
inform them of the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Austin Printing Co., Akron, Ohio, its offi-
cers, agents, successors, and assigns, shall
1.Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Graphic Communications Union, Local
546M, GCC/IBT, as the exclusive representative of the
employees in the unit by failing to continue in effect all
the terms and conditions of its January 1, 2007, to De-
cember 31, 2008 collective-bargaining agreement with
the Union with respect to article 12 concerning vacation
pay and article 15 concerning severance pay, and failing
to provide proper notice and a meaningful opportunity to
AUSTIN PRINTING CO. 4
bargain about the effects of its decision to cease business
and discontinue operations at its Akron, Ohio facility.
The appropriate unit is:
All full-time and regular part-time pressroom operators,
pressroom assistants, bindery employees, shippers and
maintenance employees, but excluding all office cleri-
cal employees, guards and supervisors as defined in the
Act.
(b) Failing and refusing to furnish the Union informa-
tion that is relevant and necessary to its role as the exclu-
sive bargaining representative of the employees in the
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) On request, bargain with the Union concerning the
effects on unit employees of its decision to cease and
discontinue its operations at its Akron, Ohio facility, and
reduce to writing and sign any agreement reached as a
result of such bargaining.
(b) Furnish the Union with the information it requested
on October 1, 2007.
(c) Make whole the unit employees for any loss of
earnings and other benefits suffered as a result of the
Respondent’s failure since October 4, 2007, to continue
in effect all the terms and conditions of its January 1,
2007, to December 31, 2008 collective-bargaining agree-
ment with the Union with respect to article 12 concern-
ing vacation pay and article 15 concerning severance
pay, and its failure to bargain with the Union concerning
the effects on unit employees of its decision to cease
business and discontinue operations at its Akron, Ohio
facility, by paying them the total amounts following their
names, plus interest accrued to the date of payment, as
set forth in New Horizons for the Retarded, 283 NLRB
1173 (1987), and minus tax withholdings required by
Federal and State laws:
NAME
WAGE
DUE
VACATION
PAY OWED
SEVERANCE
PAY TOTALS
Frederick Barnhart4 $ 1,528.00 $ 2,414.24 $ 7,640.00 $ 11,582.24
Jonathan Barnhart5 1,324.80 2,543.62 6,624.00 10,492.42
James Bond 1,771.20 3,046.46 8,856.00 13,673.66
Daniel Border 1,263.20 2,071.65 3,158.00 6,492.85
Donna Calaway 931.20 2,113.82 1,862.40 4,907.42
Robert Calaway6 1,442.00 4,788.77 7,212.00 13,442.77
Edward Gnap7 1,044.00 3,674.88 5,220.00 9,938.88
Patrick Gnap 1,771.20 4,463.42 8,856.00 15,090.62
Michael Greene 1,584.80 2,757.55 7,924.00 12,266.35
Derek Hankinson 1,501.60 2,582.75 7,508.00 11,592.35
Scott Heinz 1,125.60 1,316.95 1,125.60 3,568.15
Ronald Machefski 1,948.00 4,519.76 9,740.00 16,207.76
Kenneth Meffert Sr. 2,036.80 4,725.38 10,184.00 16,946.18
Kenneth Meffert Jr. 1,680.80 3,933.07 6,723.20 12,337.07
Douglas Murphy 1,771.20 4,286.30 8,856.00 14,913.50
Bradley Rohrbaugh8 1,771.20 4,286.30 8,856.00 14,913.50
Larry Sarver 2,027.20 3,097.66 10,136.00 15,260.86

4 The first page of app. A to the compliance specification indicates that Frederick Barnhart is owed gross backpay of
$9168. However, the second page of app. A indicates that he is owed gross backpay of $11,582.24. Our calculations
show that the second page reflects the correct figure.
5 In app. A, the General Counsel mistakenly lists Jonathan Barnhart’s gross backpay as totaling $10,555.42. However,
our calculations show that the figure actually totals $10,492.42.
6 In app. A, the General Counsel mistakenly lists Robert Calaway’s gross backpay as totaling $13,443.17. However,
our calculations show that the figure actually totals $13,442.77.
7 In app. A, the General Counsel mistakenly lists Edward Gnap’s gross backpay as totaling $9,878.88. However, our
calculations show that the figure actually totals $9,938.88.
8 In app. A, the General Counsel mistakenly lists Bradley Rohrbaugh’s gross backpay as totaling $13,913.50. However,
our calculations show that the figure actually totals $14,913.50.
AUSTIN PRINTING CO. 6
Richard Shandel 1,401.60 2,719.10 7,008.00 11,128.70
Billy Stopher Jr. 1,611.20 3,931.33 8,056.00 13,598.53
Charles Sumpton 1,501.60 3,183.39 7,508.00 12,192.99
Richard Swain 1,771.20 5,030.21 8,856.00 __15,657.41
TOTALS $32,808.40 $71,486.61 $151,909.20 $256,204.21
TOTAL
BACKPAY DUE
$256,204.21
(d) 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.
(e) 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”9 to the Union
and to all unit employees employed by the Respondent at
any time since late September 2007.
(f) 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.
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

9 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.”
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with Graphic Communications Union,
Local 546M, GCC/IBT, as the exclusive representative
of the employees in the unit, by failing to continue in
effect all the terms and conditions of our January 1,
2007, to December 31, 2008 collective-bargaining
agreement with the Union with respect to article 12 con-
cerning vacation pay and article 15 concerning severance
pay, and failing to provide proper notice and a meaning-
ful opportunity to bargain about the effects of our deci-
sion to cease business and discontinue operations at our
Akron, Ohio facility. The appropriate unit is:
All full-time and regular part-time pressroom operators,
pressroom assistants, bindery employees, shippers and
maintenance employees, but excluding all office cleri-
cal employees, guards and supervisors as defined in the
Act.
WE WILL NOT fail and refuse to furnish the Union in-
formation that is relevant and necessary to its role as the
exclusive bargaining representative of the employees in
the unit.
WE WILL NOTin 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 with the Union over the
effects on unit employees of our decision to cease busi-
ness and discontinue operations at our Akron, Ohio facil-
ity, and reduce to writing and sign any agreement
reached as a result of such bargaining.
WE WILL furnish the Union with the information it re-
quested on October 1, 2007.
WE WILL make whole the unit employees for any loss
of earnings and other benefits suffered as a result of our
failure since October 4, 2007, to continue in effect all the
terms and conditions of our January 1, 2007, to Decem-
ber 31, 2008 collective-bargaining agreement with the
Union with respect to article 12 concerning vacation pay
and article 15 concerning severance pay, and our failure
to bargain with the Union concerning the effects on unit
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
employees of our decision to cease business and discon-
tinue operations at our Akron, Ohio facility by paying
them the total amounts following their names plus inter-
est.
NAME
WAGE
DUE
VACATION
PAY OWED
SEVERANCE
PAY TOTALS
Frederick Barnhart $ 1,528.00 $ 2,414.24 $ 7,640.00 $ 11,582.24
Jonathan Barnhart 1,324.80 2,543.62 6,624.00 10,492.42
James Bond 1,771.20 3,046.46 8,856.00 13,673.66
Daniel Border 1,263.20 2,071.65 3,158.00 6,492.85
Donna Calaway 931.20 2,113.82 1,862.40 4,907.42
Robert Calaway 1,442.00 4,788.77 7,212.00 13,442.77
Edward Gnap 1,044.00 3,674.88 5,220.00 9,938.88
Patrick Gnap 1,771.20 4,463.42 8,856.00 15,090.62
Michael Greene 1,584.80 2,757.55 7,924.00 12,266.35
Derek Hankinson 1,501.60 2,582.75 7,508.00 11,592.35
Scott Heinz 1,125.60 1,316.95 1,125.60 3,568.15
Ronald Machefski 1,948.00 4,519.76 9,740.00 16,207.76
Kenneth Meffert Sr. 2,036.80 4,725.38 10,184.00 16,946.18
Kenneth Meffert Jr. 1,680.80 3,933.07 6,723.20 12,337.07
Douglas Murphy 1,771.20 4,286.30 8,856.00 14,913.50
Bradley Rohrbaugh 1,771.20 4,286.30 8,856.00 14,913.50
Larry Sarver 2,027.20 3,097.66 10,136.00 15,260.86
Richard Shandel 1,401.60 2,719.10 7,008.00 11,128.70
Billy Stopher Jr. 1,611.20 3,931.33 8,056.00 13,598.53
Charles Sumpton 1,501.60 3,183.39 7,508.00 12,192.99
Richard Swain 1,771.20 5,030.21 8,856.00 15,657.41
TOTALS $32,808.40 $71,486.61 $151,909.20 $256,204.21
TOTAL
BACKPAY DUE
$256,204.21
AUSTIN PRINTING CO.