Exhibit Dynamics, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 33 (N.L.R.B. 2004)

343 NLRB No. 33
Exhibit Dynamics, Inc. and Ohio and Vicinity Re-
gional Council of Carpenters. Case 8–CA–
34859–1
September 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS WALSH
AND MEISBURG
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the consolidated complaint and compliance
specification. Upon a charge and an amended charge
filed by the Ohio and Vicinity Regional Council of Car-
penters and Joiners of America (the Regional Council)
on February 24, and April 7, 2004, respectively, the Gen-
eral Counsel issued the consolidated complaint and com-
pliance specification on April 27, 2004, against Exhibit
Dynamics, Inc., the Respondent, alleging that it has vio-
lated Section 8(a)(1) and (5) of the Act. The Respondent
failed to file an answer.
On August 30, 2004, the General Counsel filed a Mo-
tion for Default Judgment with the Board. On September
1, 2004, the Board issued an order transferring the pro-
ceeding 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.
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 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
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 compliance specification affirmatively stated that
unless an answer was filed by May 18, 2004, all the alle-
gations in the consolidated complaint and compliance
specification could be considered admitted. Further, the
undisputed allegations in the General Counsel’s motion
disclose that the Region, by letter dated July 7, 2004,
notified the Respondent that although on May 21, 2004,
the Region granted the Respondent’s request for an ex-
tension of time to file an answer until June 15, 2004, no
answer had been received. The Region further advised
that unless an answer was received by July 15, 2004, a
motion for default judgment would be filed.
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
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Texas corpora-
tion with a facility located at 12930 Darice Parkway,
Strongsville, Ohio, has been engaged in the business of
manufacturing signs and displays. During the 12-month
period preceding the issuance of the consolidated com-
plaint and compliance specification, the Respondent, in
conducting its business operations described above, sold
and shipped from its Strongsville, Ohio facility goods
valued in excess of $50,000 directly to points located
outside the state of Ohio. 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 Regional
Council, and Millmen’s Local 1242, affiliated with the
Regional Council (Local 1242), have been labor organi-
zations 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 names and have been
supervisors within the meaning of Section 2(11) of the
Act and/or agents of the Respondent within the meaning
of Section 2(13) of the Act:
Sam Lugo Chief Financial Officer
John Mark Chevallier Attorney
The following employees of the Respondent at its
Strongsville, Ohio facility constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees in or about the shop with the exception
of Photographers, office, all field supervisors and pro-
fessional employees.

1 The complaint states that the Respondent, on or about February 3,
2004, notified Local 1242 that it intended to file a bankruptcy petition.
The General Counsel’s motion and the consolidated complaint and
compliance specification do not indicate whether the Respondent actu-
ally filed a bankruptcy petition. However, even assuming that the
Respondent has, it is well established 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 disposi-
tion. See, e.g., Cardinal Services, 295 NLRB 933 fn. 2 (1989), and
cases cited there. Board proceedings fall within the exception to the
automatic stay provisions for proceedings by a governmental unit to
enforce its police or regulatory powers. See id., and cases cited there;
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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Since at least March 1, 2001, and at all material times,
Local 1242 has been the designated exclusive collective-
bargaining representative of the unit described above,
and since at least then Local 1242 has been recognized as
the representative by the Respondent. This recognition
has been embodied in successive collective-bargaining
agreements, the most recent of which was effective from
March 1, 2001, to February 28, 2004.
At all times since at least March 1, 2001, based on
Section 9(a) of the Act, Local 1242 has been the exclu-
sive collective-bargaining representative of the unit.
About February 3, 2004, the Respondent notified Lo-
cal 1242 that it intended to cease its operations at its
Strongsville, Ohio facility and file a bankruptcy petition.
Since February 4, 2004, and at various times thereaf-
ter, Local 1242 and the Regional Council have requested
that the Respondent bargain collectively about the effects
of its decision to cease operations referred to above.
Since about February 4, 2004, the Respondent has
failed and refused to bargain collectively about the ef-
fects of its decision to cease operations at the Strongs-
ville, Ohio facility.
About March 12, 2004, the Respondent ceased its
manufacturing operation at its Strongsville, Ohio 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 purposes of collective
bargaining.
Since about March 10, 2004, the Respondent unilater-
ally modified the terms of article 11-1.4 (vacations) of its
collective-bargaining agreement with Local 1242, by
ceasing to provide employees with their accrued vacation
pay when employment is terminated. The Respondent
engaged in the conduct described above without prior
notice to Local 1242 and without having received the
agreement of Local 1242.
The terms and conditions of employment set forth
above are mandatory subjects for the purpose of collec-
tive bargaining.
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, has been in-
terfering with, restraining, and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act,
and has thereby engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1) and
(5) 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.
To remedy the Respondent’s unlawful failure and re-
fusal to notify and bargain with Local 1242 about the
effects of the Respondent’s decision to cease operations
at its Strongsville, Ohio facility, we shall order the Re-
spondent to bargain with Local 1242, on request, about
the effects of that decision. As a result of the Respon-
dent’s unlawful failure to bargain in good faith with Lo-
cal 1242 over the effects of its decision to cease its op-
erations, 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 Local 1242. A bargaining order alone, there-
fore, 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
purposes of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the 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).2
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 business days after the date
of this Decision and Order until occurrence of the earliest
of the following conditions: (1) the date the Respondent
bargains to agreement with Local 1242 on those subjects
pertaining to the effects of its decision to cease opera-
tions at its Strongsville facility on its employees; (2) a
bona fide impasse in bargaining; (3) Local 1242’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 Local 1242; or (4)
Local 1242’s subsequent failure to bargain in good faith.
In no event shall the sum paid to these employees ex-
ceed the amount they would have earned as wages from
the date on which the Respondent ceased doing business

2 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
EXHIBIT DYNAMICS, INC. 3
at the facility to the time they secured equivalent em-
ployment elsewhere, or the date on which the Respon-
dent shall have offered to bargain in good faith, which-
ever 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 normally have
received during the applicable period, less any net in-
terim earnings, and shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Here, the General Counsel, in the compliance specifi-
cation, seeks the minimum 2 weeks of backpay due the
terminated unit employees under Transmarine. We shall
grant the General Counsel’s request and order the Re-
spondent to pay the amounts set forth in the compliance
specification, with interest as prescribed in New Horizons
for the Retarded, supra. However, in view of the Gen-
eral Counsel’s assertion that the backpay period is not
tolled, the backpay period shall continue until the occur-
rence of the earliest of the conditions set forth in Trans-
marine.
In addition, having found that the Respondent unlaw-
fully ceased to pay vacation pay to bargaining unit em-
ployees, the Respondent is ordered to restore the status
quo that existed just prior to its unlawful change, and to
make the unit employees whole for any losses they may
have suffered as a result of the Respondent’s unlawful
failure to pay them vacation pay, by paying to them the
amounts set forth in the compliance specification, with
interest as prescribed in New Horizons for the Retarded,
supra.
In view of the fact that the Respondent’s facility is ap-
parently closed, we shall order the Respondent to mail a
copy of the attached notice to Local 1242 and to the last
known addresses of its former employees in order to in-
form them of the outcome of this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Exhibit Dynamics, Inc., Strongsville, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Millmen’s Local 1242, affiliated with the
Ohio and Vicinity Regional Council of Carpenters of the
United Brotherhood of Carpenters and Joiners of Amer-
ica, concerning the effects on the unit employees of its
decision to cease operations at its Strongsville, Ohio fa-
cility. The bargaining unit consists of:
All employees in or about the shop with the exception
of Photographers, office, all field supervisors and pro-
fessional employees.
(b) Failing and refusing to bargain with Local 1242 by
unilaterally ceasing to pay vacation pay to its unit em-
ployees without first notifying Local 1242 and affording
it an opportunity to bargain about this change and the
effects of this change.
(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 Local 1242 over the ef-
fects on unit employees of its decision to cease opera-
tions at its Strongsville, Ohio facility, and put in writing
and sign any agreement reached as a result of such bar-
gaining.
(b) Pay the individuals named below the amounts fol-
lowing 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:
Employee Name Vacation Wages Total
Todd Arnold $ 872.32 $ 1,090.40 $ 1,962.72
Richard Beller 2,476.80 1,651.20 4,128.00
Robert Bochin 152.80 1,526.40 1,679.20
David Chislow 2,283.68 1,631.20 3,914.88
Roger Churgovich 1,795.20 1,632.00 3,427.20
John Dancy 1,113.28 1,590.40 2,703.68
Jeremiah Edgar 985.68 1,095.20 2,080.88
Pascal Ginesta 2,088.00 1,740.00 3,828.00
Christopher Hardin 1,588.00 2,064.40 3,652.40
Richard Knapik 2,596.80 1,731.20 4,328.00
Warren Norton 1,833.92 1,667.20 3,501.12
Michael Petersen 1,914.00 1,740.00 3,654.00
Gregory Sommer 2,311.68 1,651.20 3,962.88
Clay Sublett 2,142.00 1,428.00 3,570.00
William Vigh 1,944.00 1,620.00 3,564.00
Bradley Zumack 2,250.56 1,731.20 3,981.76
TOTAL $53,938.723
(c) Pay to the unit employees their normal wages for
the period set forth in the remedy section of this decision.
(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-

3 We correct the following mathematical errors in the compliance
specification: the total amount due Robert Bochin is $1,679.20 rather
than $1,526.40, and the total amount due all unit employees is
$53,938.72 rather than $53,938.36.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
cords 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.
(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, signed
and dated copies of the attached notice marked "Appen-
dix"4 to Local 1242 and to all unit employees employed
at the Strongsville, Ohio facility on or after February 4,
2004.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
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
violated Federal labor law and has ordered us to mailed
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 benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with Millmen’s Local 1242, affiliated
with the Ohio and Vicinity Regional Council of Carpen-
ters of the United Brotherhood of Carpenters and Joiners
of America, concerning the effects on the unit employees
of our decision to cease operations at our Strongsville,
Ohio facility. The bargaining unit consists of:

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.”
All employees in or about the shop with the exception
of Photographers, office, all field supervisors and pro-
fessional employees.
WE WILL NOT fail and refuse to bargain with Local
1242 by unilaterally ceasing to pay vacation pay to our
unit employees without first notifying Local 1242 and
affording it an opportunity to bargain about this change
and the effects of this change.
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 with Local 1242 over the
effects on unit employees of our decision to cease opera-
tions at our Strongsville, Ohio facility, and put in writing
and sign any agreement reached as a result of such bar-
gaining.
WE WILL pay the individuals named below the
amounts following their names, plus interest accrued to
the date of payment, and minus tax withholdings re-
quired by Federal and State laws:
Employee Name Vacation Wages Total
Todd Arnold $ 872.32 $ 1,090.40 $ 1,962.72
Richard Beller 2,476.80 1,651.20 4,128.00
Robert Bochin 152.80 1,526.40 1,679.20
David Chislow 2,283.68 1,631.20 3,914.88
Roger Churgovich 1,795.20 1,632.00 3,427.20
John Dancy 1,113.28 1,590.40 2,703.68
Jeremiah Edgar 985.68 1,095.20 2,080.88
Pascal Ginesta 2,088.00 1,740.00 3,828.00
Christopher Hardin 1,588.00 2,064.40 3,652.40
Richard Knapik 2,596.80 1,731.20 4,328.00
Warren Norton 1,833.92 1,667.20 3,501.12
Michael Petersen 1,914.00 1,740.00 3,654.00
Gregory Sommer 2,311.68 1,651.20 3,962.88
Clay Sublett 2,142.00 1,428.00 3,570.00
William Vigh 1,944.00 1,620.00 3,564.00
Bradley Zumack 2,250.56 1,731.20 3,981.76
TOTAL $53,938.72
WE WILL pay our unit employees further limited back-
pay in connection with our failure to bargain over the
effects of our decision to cease operations at our
Strongsville, Ohio facility, as required by the Decision
and Order of the National Labor Relations Board.
EXHIBIT DYNAMICS, INC.