Tech Valley Printing, Inc.

National Labor Relations Board - Board Decisions

May 30, 2008

352 N.L.R.B. 81 (N.L.R.B. 2008)

352 NLRB No. 81
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.
General Business Supply, d/b/a Tech Valley Printing,
Inc. and Local 259-M, Graphics Communica-
tions Conference of the International Brother-
hood of Teamsters. Cases 3–CA–26517 and 3–
CA–26585
May 30, 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 consolidated complaint. Upon charges
and an amended charge filed by the Union on December
12, 2007, and on February 13 and March 4, 2008, respec-
tively, the General Counsel issued the consolidated com-
plaint on March 6, 2008, against General Business Sup-
ply, d/b/a Tech Valley 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 April 4, 2008, the General Counsel filed a Motion
for Default Judgment with the Board. Thereafter, on
April 9, 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 consolidated complaint affirma-
tively stated that the answer must be received by the Re-
gional Office on or before March 20, 2008, and that if no
answer was filed, the Board may find, pursuant to a mo-
tion for default judgment, that the allegations in the com-
plaint are true. By letter dated March 25, 2008, counsel
for the Respondent informed the Region that based upon
the involuntary Chapter 7 bankruptcy case pending

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.
against it, the Respondent was not in a position to answer
the complaint.2 To date, no answer has been filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer,3 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, a corporation,
with an office and place of business located in Waterv-
liet, New York, herein called the Watervliet, New York
facility, has been engaged in the business of commercial
printing.
During the 12-month period preceding the issuance of
the consolidated complaint, the Respondent, in conduct-
ing its business operations described above, purchased
and received goods and materials valued in excess of
$50,000 directly from points located outside the State of
New York.
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 Local 259-M, Graphics Commu-
nications Conference of the International Brotherhood of
Teamsters, 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, John Smith held the position of
the Respondent’s president, and has been a supervisor of
the Respondent within the meaning of Section 2(11) of
the Act and an agent of the Respondent within the mean-
ing 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 lithographic production employees employed by
Respondent at its Watervliet, New York facility, ex-

2 Although no further reminder was sent to the Respondent after ser-
vice of the complaint, no such reminder was needed in light of the
notification to the Region from the Respondent’s counsel that the Re-
spondent was not in a position to file an answer. Moreover, the failure
to send a reminder letter does not warrant denial of a motion for default
judgment. Superior Industries, 289 NLRB 834, 835 fn. 13 (1988).
3 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 disposition. 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 provi-
sions for proceedings by a governmental unit to enforce its police or
regulatory powers. See id., and cases cited therein; NLRB v. 15th Ave-
nue 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 REALTIONS BOARD2
cluding office clerical employees, guards and all pro-
fessional employees and supervisors as defined in the
Act and all other employees.
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 is effective from No-
vember 1, 2006, through October 31, 2009 (the 2006–
2009 agreement).
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
Since about June 12, 2007, the Respondent has failed
to remit to the Union the dues required by article 34, sec-
tion 1 of the 2006–2009 agreement that the Respondent
withheld from the unit employees’ wages.
Since about June 12, 2007, the Respondent has failed
to remit contributions to the Inter-Local Pension Fund as
required by article 20, section 1 of the 2006–2009 agree-
ment that the Respondent has withheld from the unit em-
ployees’ wages.
Since about June 12, 2007, the Respondent has failed
to make contractually-required contributions to the Sup-
plemental Retirement and Disability Fund and the GCIU
Employer Retirement Fund as required by article 39,
sections 1 through 4 and article 41, section 1 through 3 of
the 2006–2009 agreement.
The subjects set forth above relate to wages, hours, and
other terms and conditions of employment of the unit and
are mandatory subjects for the purpose of collective bar-
gaining. The Respondent engaged in the conduct de-
scribed above without prior notice to the Union and
without affording the Union an opportunity to bargain
with the Respondent with respect to this conduct.
On or about September 17, 2007, the Union by letter,
requested that the Respondent furnish the Union with the
following information and renewed that request by letter
dated November 1, 2007:
A list of all bargaining unit employees at Tech Valley
Printing. This list needs to include the names, ad-
dresses, phone numbers and current job classifications
of all bargaining unit employees.
The information requested by the Union is necessary
for and relevant to the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit. Since about September 17, 2007, the Respon-
dent has failed and refused to furnish the Union with the
requested information.
On about February 8, 2008, the Respondent closed its
Watervliet, New York facility. This subject relates to
wages, hours, and other terms and conditions of em-
ployment of the unit and is a mandatory subject for the
purpose of collective bargaining.
Since about February 8, 2008, the Respondent has
failed and refused to bargain with the Union as the exclu-
sive bargaining representative of the unit over the effects
on the unit of its decision to close its Watervliet, New
York facility.
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, to remedy
the Respondent’s unlawful failure and refusal to bargain
with the Union about the effects of the Respondent’s
decision to close its Watervliet, New York facility on
February 8, 2008, we shall order the Respondent to bar-
gain with the Union, on request, about the effects of its
decision. As a result of the Respondent’s unlawful con-
duct, however, the unit employees have been denied an
opportunity to bargain through their collective-
bargaining representative at a time when the Respondent
might still have been in need of their services and a
measure of balanced bargaining power existed. Mean-
ingful bargaining cannot be assured until some measure
of economic strength is restored to the Union. A bar-
gaining order alone, therefore, cannot serve as an ade-
quate remedy for the unfair labor practices committed.
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 both to
make whole the employees for losses suffered as a result
of the violation and to re-create in some practicable man-
ner a situation in which the parties’ bargaining position is
not entirely devoid of economic consequences for the
Respondent. We shall do so by ordering the Respondent
to pay backpay to the unit employees in a manner similar
to that required in Transmarine Navigation Corp., 170
TECH VALLEY PRINTING, INC. 3
NLRB 389 (1968), as clarified by Melody Toyota, 325
NLRB 846 (1998).4
Thus, the Respondent shall pay its unit employees
backpay at the rate of their normal wages when last in the
Respondent’s employ from 5 days after the date of this
Decision and Order until occurrence of the earliest of the
following conditions: (1) the date the Respondent bar-
gains to agreement with the Union on those subjects per-
taining to the effects of its decision to close its facility on
the unit employees; (2) a bona fide impasse in bargain-
ing; (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.
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 operations of
its Watervliet, New York facility to the time they secured
equivalent employment elsewhere, or the date on which
the Respondent shall have offered to bargain in good
faith, whichever 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 pe-
riod, less any net interim earnings, and shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).5
In addition, having found that the Respondent has vio-
lated Section 8(a)(5) and (1) by failing since June 12,
2007, to remit to the Union the dues that were deducted
from employees’ wages, as required by article 34, section
1 of the 2006–2009 agreement, we shall order the Re-
spondent to forward the deducted dues to the Union as

4 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
Neither the complaint nor the motion specify the impact, if any, on the
unit employees of the Respondent’s decision to close. Thus, we do not
know whether, or to what extent, the refusal to bargain about the effects
of this decision had an impact on the unit employees. In these circum-
stances, we shall permit the Respondent to contest the appropriateness
of a Transmarine backpay remedy at the compliance stage. See, e.g.,
Buffalo Weaving & Belting, 340 NLRB 684, 685 fn. 3(2007); and ACS
Acquisition Corp., 339 NLRB 736, 737 fn. 2 (2003).
5 In the consolidated complaint, the General Counsel “seeks an Or-
der requiring that the Respondent pay interest on any back pay or other
monetary awards on a compounded, quarterly basis.” 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., Rogers
Corp., 344 NLRB 504 (2005).
required by the 2006–2009 agreement, with interest, as
prescribed in New Horizons for the Retarded, supra.
Further, having found that the Respondent violated
Section 8(a)(5) and (1) by failing since June 12, 2007, to
remit contributions to the Inter-Local Pension Fund that
the Respondent withheld from employees’ wages as re-
quired by article 20, section 1 of the 2006–2009 agree-
ment, and by failing to make contractually-required con-
tributions to the Supplemental Retirement and Disability
Fund and the GCIU Employer Retirement Fund, as re-
quired by article 39, sections 1 through 4 and article 41,
sections 1 through 3 of the 2006–2009 agreement, we
shall order the Respondent to remit such contributions to
the Inter-Local Pension Fund, and to make whole its unit
employees by making all such delinquent contributions
to the Supplemental Retirement and Disability Fund and
the GCIU Employer Retirement Fund including any ad-
ditional amounts due the funds in accordance with Mer-
ryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).6 We shall also order the Respondent to reim-
burse the unit employees for any expenses ensuing from
its failure to remit the required contributions, as set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981), such amounts
to be computed in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Hori-
zons for the Retarded, supra.
Also, having found that the Respondent violated Sec-
tion 8(a)(5) and (1) by failing and refusing to furnish the
Union with relevant and necessary information requested
on September 17 and November 1, 2007, we shall order
the Respondent to provide the Union with the requested
information.7

6 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s delinquent contributions to the funds during the pe-
riod of the delinquency, the Respondent will reimburse the employee,
but the amount of such reimbursement will constitute a setoff to any
amount that the Respondent otherwise owes the funds.
7 In the remedy section of the consolidated complaint, the General
Counsel seeks an order requiring that the Respondent post a notice to
employees containing language acknowledging that the Respondent
breached a prior informal settlement agreement in which the Respon-
dent promised that it would not fail and refuse to furnish the Union
with necessary and relevant information. However, the General Coun-
sel has not provided any evidence that the informal settlement agree-
ment was set aside in accordance with Sec. 101.9(e)(2) of the Board’s
Rules and Regulations. Accordingly, we shall require only the standard
remedy for the failure to provide requested information that was alleged
in the consolidated complaint.
DECISIONS OF THE NATIONAL LABOR REALTIONS BOARD4
Finally, in view of the fact that the Respondent has
closed its Watervliet, New York facility, we shall order
the Respondent to mail a copy of the attached notice to
the Union and to the last known addresses of the unit
employees who were employed by the Respondent since
June 12, 2007, in order to inform them of the outcome of
this proceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, General Business Supply, d/b/a Tech Valley
Printing, Inc., Watervliet, New York, its officers, agents,
successors, and assigns, shall
1.Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Local 259-M, Graphics Communications
Conference of the International Brotherhood of Team-
sters, as exclusive collective-bargaining representative of
the employees in the unit set forth below, over the effects
of the Respondent’s decision to close its Watervliet, New
York facility on February 8, 2008:
All lithographic production employees employed by
Respondent at its Watervliet, New York facility, ex-
cluding office clerical employees, guards and all pro-
fessional employees and supervisors as defined in the
Act and all other employees.
(b) Failing to remit to the Union dues that were de-
ducted from employees’ wages as required by article 34,
section 1 of the 2006–2009 agreement.
(c) Failing to remit contributions to the Inter-Local
Pension Fund that were withheld from employees’
wages, as required by article 20, section 1 of the 2006–
2009 agreement.
(d) Failing to make contractually-required contribu-
tions to the Supplemental Retirement and Disability
Fund and the GCIU Employer Retirement Fund, as re-
quired by article 39, sections 1 through 4 and article 41,
sections 1 through 3 of the 2006–2009 agreement.
(e) 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.
(f) 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 collectively and in good faith
with the Union concerning the effects of the Respon-
dent’s decision to close its Watervliet, New York facility
on February 8, 2008, and reduce to writing and sign any
agreement reached as a result of such bargaining.
(b) Pay the unit employees their normal wages for the
period set forth in the remedy section of this decision.
(c) Remit to the Union all dues that have been de-
ducted from employees’ wages, as required by article 34,
section 1 of the 2006–2009 agreement, that have not
been remitted since June 12, 2007, with interest, in the
manner set forth in the remedy section of this decision.
(d) Remit all contributions to the Inter-Local Pension
Fund that were withheld from employees’ wages, as re-
quired by article 20, section 1 of the 2006–2009 agree-
ment that have not been remitted since June 12, 2007,
with interest, in the manner set forth in the remedy sec-
tion of this decision.
(e) Make all contractually-required contributions to the
Supplemental Retirement and Disability Fund and the
GCIU Employer Retirement Fund that have not been
made since June 12, 2007, with interest, in the manner
set forth in the remedy section of this decision.
(f) Make whole the unit employees for any expenses
ensuing from the Respondent’s failure to remit the re-
quired contributions to the Inter-Local Pension Fund, and
from the Respondent’s failure to make the contractually-
required contributions to the Supplemental Retirement
and Disability Fund and the GCIU Employer Retirement
Fund since June 12, 2007, with interest, in the manner set
forth in the remedy section of this decision.
(g) Furnish the Union with the information it requested
on September 17 and November 1, 2007.
(h) 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.
(i) Within 14 days after service by the Region, the Re-
spondent shall duplicate and mail, at its own expense and
after being signed by the Respondent’s authorized repre-
sentative, copies of the attached notice marked “Appen-
dix”8 to the Union and to all unit employees who were
employed by the Respondent at any time since June 12,
2007.

8 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.”
TECH VALLEY PRINTING, INC. 5
(j) 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.
Dated, Washington, D.C. May 30, 2008
Peter C. Schaumber, Chairman
Wilma B. Liebman, 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 Local 259-M, Graphics Commu-
nications Conference of the International Brotherhood of
Teamsters, as the exclusive collective-bargaining repre-
sentative of the employees in the unit set forth below,
over the effects of our decision to close our Watervliet,
New York facility on February 8, 2008:
All lithographic production employees employed by us
at our Watervliet, New York facility, excluding office
clerical employees, guards and all professional em-
ployees and supervisors as defined in the Act and all
other employees.
WE WILL NOT fail to remit Union dues that were de-
ducted from employees’ wages as required by article 34,
section 1 of the November 1, 2006, to October 31, 2009
collective-bargaining agreement.
WE WILL NOT fail to remit contributions to the Inter-
Local Pension Fund that were withheld from employees’
wages as required by article 20, section 1 of the 2006–
2009 agreement.
WE WILL NOT fail to make contractually-required con-
tributions to the Supplemental Retirement and Disability
Fund and the GCIU Employer Retirement Fund, as re-
quired by article 39, sections 1 through 4 and article 41,
sections 1 through 3 of the 2006–2009 collective-
bargaining agreement.
WE WILL NOT fail and refuse to furnish the Union in-
formation it requested on September 17 and November 1,
2007, that is relevant and necessary to its role as the ex-
clusive bargaining representative of the employees in the
unit.
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 collectively and in good
faith with the Union concerning the effects of our deci-
sion to close our Watervliet, New York facility, and re-
duce to writing and sign any agreement reached as a re-
sult of such bargaining.
WE WILL pay the unit employees their normal wages
for the period set forth in the Decision and Order of the
National Labor Relations Board, with interest.
WE WILL remit to the Union all dues that were de-
ducted from employees’ wages as required by article 34,
section 1 of the 2006–2009 collective-bargaining agree-
ment that have not been remitted since June 12, 2007,
with interest.
WE WILL remit all contributions to the Inter-Local
Pension Fund that were withheld from employees’
wages, as required by article 20, section 1 of the 2006–
2009 collective-bargaining agreement that have not been
remitted since June 12, 2007, with interest.
WE WILL make all contractually-required contributions
to the Supplemental Retirement and Disability Fund and
the GCIU Employer Retirement Fund that have not been
made since June 12, 2007, with interest.
WE WILL make whole the unit employees for any ex-
penses ensuing from our failure to remit the required
contributions to the Inter-Local Pension Fund, and from
our failure to make the contractually-required contribu-
tions to the Supplemental Retirement and Disability
Fund and the GCIU Employer Retirement Fund since
June 12, 2007, with interest.
WE WILL furnish the Union with the information it re-
quested on September 17 and November 1, 2007.
GENERAL BUSINESS SUPPLY, D/B/A TECH
VALLLEY PRINTING, INC.

352 NLRB No. 81