Strippers, Inc.

STRIPPERS, INC. Strippers, Inc. and Southern Labor Union. Case 10-CA-9317 June 6, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a charge filed on December 2, 1971, and an amended charge filed on January 17, 1972, by Southern Labor Union, herein called the Union, and duly served on Strippers, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10, issued a complaint on January 20, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3), (5), and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges that on or about November 1, 1971, the Respondent transferred employee Glenn C. Jeffers from its strip mine to its concrete plant, and on November 20, 1971, discharged and thereafter failed and refused to reinstate him. The complaint further alleges that on or about November 16, 1971, the Respondent laid off and thereafter failed and refused to recall employees Roy D. Overton and Ernie A. Baker. The complaint alleges that the Respondent transferred and discharged Jeffers and laid off Overton and Baker because of their member- ship in, and activities on behalf of, the Union, and because they engaged in concerted activities with other employees for the purpose of collective bargaining or other mutual aid and protection. The complaint also alleges that on or about November 1, 1971, the Union was designated by a majority of the employees in an appropriate unit, that at all times since that date the Union has been, and is, the exclusive bargaining representative of all employees in said unit, and that on or about November 1, 1971, and at all times thereafter, Respondent has refused, and continues to refuse, to bargain collectively with the Union, although the Union has requested it to do so. It is further alleged that on or about November 10, 1971, Respondent unilaterally, and without bargaining with the Union, granted insurance benefits to its unit employees. Alleged as an independent violation is the conduct of Respondent's president and mine superintendent in 291 threatening its employees with a mine closure if the Union was successful in its organizational campaign. On February 28, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 2, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent did not file a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing served on the Respondent specifically state that unless an answer were filed within 10 days from the service of the complaint "all of the allegations of said complaint shall be deemed to be admitted to be true and may be so found by the Board." The complaint was served on Respondent on or about January 20, 1972. On February 7, 1972, Respondent's president was solicited by counsel for the General Counsel, both by telephone and by letter, to file an answer to the complaint. On February 14, 1972, Respondent's president was again solicited to file an answer. He replied that he was not going to file an answer but would ask for postponement of the hearing in order to try to find an attorney. The Board has received no further communication from the Respondent. Since the Respondent has not filed an answer to the complaint nor shown good cause for failure to do so, the allegations of the complaint are deemed, and are 197 NLRB No. 38 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found, to be true. We shall, accordingly, grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Tennessee corporation , with its principal office and place of business at Huntsville, Tennessee, where it is engaged in the strip mining and sale of coal. During the past year, Respondent sold and shipped coal valued in excess of $50,000 directly to the Tennessee Valley Authority. The Tennessee Valley Authority is a public utility engaged in the generation and distribution of electrical power throughout the Southeastern United States. During the past year it sold and distributed electrical power directly to points outside the State of Tennessee valued in excess of $50,000. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Southern Labor Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The 8(a)(5) Violations The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Respondent, at its Huntsville, Tennessee, mine, but excluding office clerical employees, guards, professional employees and supervisors as defined in the Act. The Union was duly selected as the collective- bargaining representative of the employees in said unit on or about November 1, 1971, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. Commencing on or about November 1, 1971, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about November 1, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since November 1, 1971, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(5) and (1) of the Act. On or about November 10, the Respondent unilaterally, and without bargaining with the Union, granted insurance benefits to its employees in the unit described above. We find that by such conduct the Respondent further violated Section 8 (a)(5) and (1) of the Act. B. The 8(a)(3) Violations On or about November 1, 1971, Respondent transferred employee Glenn C. Jeffers from its strip mine to its concrete plant and on or about November 20, 1971, discharged Glenn C. Jeffers and thereafter failed and refused to reinstate him because of his membership in, and activities on behalf of, the Union, and because he engaged in concerted activities with other employees for the purpose of collective bargaining or other mutual aid and protection. Respondent, on or about November 16, 1971, laid off and thereafter failed and refused to recall Roy D. Overton and Ernie A. Baker because of their membership in, and activities with other employees and because they engaged in concerted activities with other employees for the purpose of collective bargaining or other mutual aid or protection. Accordingly, we find that by the transfer and discharge of Jeffers and by the layoff of Overton and Baker and by its failure to reinstate and recall these employees, the Respondent discriminated in regard to the terms and conditions of employment of its employees because of their union and other concert- ed activities, thereby discouraging membership in a labor organization and that by such conduct the Respondent engaged in and is engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. C. The Independent 8(a)(1) Violations Respondent, by its president and mine superin- tendent, on or about November 10, 1971, threatened its employees with closure of the mine if the Union STRIPPERS, INC. were successful in its organizational campaign. We find, accordingly, that by the aforesaid conduct, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights. guaranteed under Section 7 of the Act and that, by such conduct, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As the Respondent on or about November '_, 1971, and at all times thereafter, refused and continues to refuse to bargain with the Union as the exclusive collective-bargaining representative of the employees in the above-described unit, and on November 10, 1971, without bargaining with the Union, granted insurance benefits to employees in the bargaining unit, we shall order Respondent to cease and desist from such conduct and, upon request, bargain collectively with the Union as the exclusive repre- sentative of all employees in the described unit. Since we have found that Respondent discrimina- torily transferred and subsequently discharged Glenn C. Jeffers and discriminatorily laid off and failed to recall Roy D. Overton and Ernie A. Baker and refused to reinstate them to their former positions, we shall order that Respondent offer them immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by payment to them of sums of money equal to the amount they normally would have earned as wages from the dates of the respective layoffs of Overton and Baker and from the date of the discharge of Jeffers, less net earnings, in accordance with the formula set forth in F. W. Woolworth Company, 90 293 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Jeffers is similarly to be made whole for losses, if any, resulting from his discriminatory transfer. Since the unfair labor practices committed by the Respondent are of a character which go to the very heart of the Act, we shall order the Respondent to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Respondent, Strippers, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Southern Labor Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section III, A, B, and C, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Strippers, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Transferring, discharging, or laying off and refusing to reinstate or recall employees because of their membership in or activities on behalf of Southern Labor , Union or otherwise discouraging membership in that Union. •(b) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms, and conditions of employment with Southern Labor Union as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of the Respondent, at its Huntsville, Tennessee, mine, but excluding office clerical employees, guards, professional employees and supervisors as defined in the Act. (c) Granting new benefits to the employees in the above-described unit, or otherwise changing their 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms and conditions of employment without prior notification to and bargaining with the Union. (d) Threatening to close the mine if the Union were successful in its organizational campaign. (e) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed then in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Offer to Glenn C. Jeffers immediate and full reinstatement to his former job at the Respondent's strip mine, and to Roy D. Overton and Ernie A. Baker their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their semonty or other rights and privileges, and make each of them whole for any loss of earnings suffered by reason of Respondent's discrimination against them, in the manner set forth in the section herein entitled "The Remedy." (c) Notify immediately the above-named individu- als, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, 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. (e) Post at its plant in Huntsville, Tennessee, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, inconspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I In the event that 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 National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in, or activities on behalf of, any labor organization by transferring, discharging, or laying off and failing or refusing to reinstate or recall, or otherwise discriminating in regard to the hire or tenure of employment of any of our employees. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with South- ern Labor Union as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT make any changes in the terms or conditions of our employees in the bargaining unit described below without prior notification to and bargaining with the Union. WE WILL NOT threaten to close our mine if Southern Labor Union is successful in its organi- zational campaign. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employ- ees at our Huntsville, Tennessee, mine, but excluding office clerical employees, guards, professional employees and supervisors as defined in the Act. WE WILL offer to Glenn C. Jeffers immediate and full reinstatement to his former job at our strip mine or, if that job no longer exists, to a substantially equivalent position, without preju- dice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of his transfer or discharge. WE WILL offer to Roy D. Overton and Ernie A. Baker immediate and full reinstatement to their STRIPPERS, INC. former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimina- tion practiced against them. You are free to become and remain members of Southern Labor Union or any other labor organiza- tion. STRIPPERS, INC. (Employer) Dated By (Representative) (Title) 295 We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Peachtree Building, 730 Peachtree Street NE., Atlanta, Georgia 30308, Telephone 404-526-5760.