Herbert Printing & Graphics

National Labor Relations Board - Board Decisions

Aug 23, 1990

299 N.L.R.B. 539 (N.L.R.B. 1990)

HERBERT PRINTING & GRAPHICS 539
Herbert Enterprises, Inc., d/b/a Herbert Printing &
Graphics and Graphic Communications Interna-
tional Union, Local 72-C and Dyna Graphics,
Inc.,' Party in Interest. Case 5-CA-20640
August 23, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by the Union August 16,
1989, the General Counsel of the National Labor
Relations Board issued a complaint January 31,
1990, against Herbert Enterprises, Inc. d/b/a Her-
bert Printing & Graphics, the Respondent, alleging
that it violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act Although properly
served copies of the charge and complaint, the Re-
spondent has failed to file an answer
On May 14, 1990, the General Counsel filed a
Motion for Summary Judgment On May 16, 1990,
the Board issued an order transferring the proceed-
ing 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 delegat-
ed its authority in this proceedmg to a three-
member panel
Ruling on Motion for Summary Judgment
Section 102 20 of the Board's Rules and Regula-
tions 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 The complaint states
that unless an answer is filed within 14 days of
service, "all of the allegations in the complaint
shall be deemed to be admitted to be true and shall
be so found by the Board" Further, the undisputed
allegations m the Motion for Summary Judgment
disclose that counsel for the General Counsel, by a
telephone conversation between Field Examiner
Kevin J Sturm and the Respondent's attorney on
March 22, 1990, and a letter to the Respondent's
attorney confirming that conversation dated April
10, 1990, notified the Respondent that unless an
answer was received, a Motion for Summary Judg-
' In his Motion to Transfer Proceedings to the Board and for Summa-
ry Judgment, the counsel for the General Counsel pointed out that in the
complaint the Party in Interest was alleged to be a successor of the Re-
spondent pursuant to Golden State Bottling Co v NLRB, 414 U S 168
(1973) He further indicated that the Motion for Summary Judgment did
not seek to establish the liability of the Party in Interest, but rather the
Respondent's liability, and that the Party in Interest may litigate its liabil-
ity in a supplemental proceeding Accordingly, we do not pass on the li-
ability of the Party in Interest
ment would be filed The Respondent's attorney in-
dicated that the Respondent decided not to file an
answer and an extension of time was not necessary
In the absence of good cause being shown for
the failure to file a timely answer and in light of
the indication by the Respondent's attorney that
the Respondent had decided not to file an answer,
we grant the General Counsel's Motion for Sum-
mary Judgment
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a Maryland corporation, has
been engaged in the printing and graphics busmess
at its facility in Fort Washington, Maryland, where
in the 12 months precedmg issuance of the com-
plaint, a representative period, it has provided
goods and services m excess of $50,000 directly to
points outside the State of Maryland We find that
the Respondent is an employer engaged in com-
merce withm the meaning of Section 2(6) and (7)
of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
Since on or about May 26, 1987, and at all times
material, the Union has been recognized as the ex-
clusive collective-bargaining representative of a
unit of employees appropriate for collective bar-
gammg within the meamng of Section 9(b) of the
Act 2 That recogmtion has been embodied m the
collective-bargaining agreement, which was effec-
tive by its terms for the period March 11, 1986, to
and including March 10, 1989 At all times materi-
al, the Umon by virtue of Section 9(a) of the Act
has been and is the exclusive representative of the
unit employees for the purpose of collective bar-
gaming with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment
Since on or about February 16, 1989, and until
September 7, 1989, the date Dyna Graphics, Inc ,
the Party in Interest, purchased the busmess and
assets of the Respondent, the Respondent has failed
to continue the terms and conditions of the collec-
tive-bargallung agreement by umlaterally discon-
tmumg its contributions to the pension fund on
behalf of the unit Those terms relate to wages,
hours, and other terms and conditions of employ-
ment, which are mandatory subjects for the pur-
2 The unit is descnbed in sec 16 of the parties' collective-bargaining
agreement The agreement has not been included in the record
299 NLRB No 78
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pose of collective bargaining. The Respondent en-
gaged in these acts and conduct without prior
notice to the Union and without having afforded
the Union an opportunity to negotiate and bargain
as the exclusive representative of the unit with re-
spect to such acts and conduct and their effects.
We find that the Respondent has violated Section
8(a)(5) and (1) of the Act by this conduct.
CONCLUSION OF LAW
By failing and refusing to continue the terms and
conditions of its collective-bargaining agreement
with the Union by failing to make contributions to
the pension fund on behalf of the unit employees,
the Respondent has failed and refused, and is fail-
ing and refusing, to bargain collectively and in
good faith with the representative of its employees,
and thereby has engaged in unfair labor practices
affecting commerce 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 certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
actions designed to effectuate the policies of the
Act. We shall order the Respondent to continue
the terms and conditions of its collective-bargain-
ing agreement with the Union, specifically with re-
spect to making the contractually required contri-
butions to the pension fund for the period between
February 16 and September 7, 1989, to be comput-
ed in the manner set forth in Merryweather Optical
Co., 240 NLRB 1213 (1979). We also shall order
the Respondent to make whole its unit employees
for any expenses and losses they may have suffered
as a result of its failure to make the required contri-
butions to the pension fund, as prescribed in Kraft
Plumbing & Heating, 252 NLRB 891 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981), to be computed
in the manner set forth in Ogle Protection Service,
182 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest to be computed in the manner
set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that
the Respondent, Herbert Enterprises, Inc., d/b/a
Herbert Printing & Graphics, Fort Washington,
Maryland, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing to continue the terms and conditions
of its collective-bargaining agreement with Graphic
Communications International Union, Local 72-C
(the Union), by failing and refusing to make the
contractually required contributions to the pension
fund on behalf of the employees in the appropriate
unit. The appropriate unit is described in the Re-
spondent's collective-bargaining agreement with
the Union, which was effective from March 11,
1986, through March 10, 1989.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Continue the terms and conditions of the col-
lective-bargaining agreement that the Respondent
entered into with the Union, specifically with re-
spect to making the contractually required contri-
butions to the pension fund on behalf of the unit
employees, as set forth in the remedy section of
this Decision and Order.
(b) Make whole the employees in the unit for
any expenses and losses they may have suffered as
a result of the Respondent's failure and refusal to
continue the terms and conditions of the collective-
bargaining agreement, in the manner prescribed in
the remedy section of this Decision and Order.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, 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 Fort Washington, Mary-
land, copies of the attached notice marked "Appen-
dix." 3 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
HERBERT PRINTING & GRAPHICS 541
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT fail and refuse to continue the
terms and conditions of our collective-bargaining
agreement with Graphic Communications Interna-
tional Union, Local 72-C (the Union), by failing
and refusing to make contributions to the pension
fund on behalf of our employees in the appropriate
unit The appropnate unit is descnbed in our col-
lective-bargaimng agreement with the Union,
which was effective from March 11, 1986, through
March 10, 1989
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you m the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL continue the terms and conditions of
our collective-bargaining agreement with the
Union by making contributions to the pension fund
on behalf of the unit employees
WE WILL make whole our employees for any ex-
penses and losses they may have sustained as a
result of our failure and refusal to continue the
terms and conditions of our collective-bargaining
agreement with the Union, with mterest
HERBERT ENTERPRISES, INC , D/B/A
HERBERT PRINTING & GRAPHICS