Midwestern Pacific Corp.

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Midwestern Pacific Corporation and International Union of Operating Engineers , Local 139. Case 30-CA-1949 November 15, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge and amended charge filed on May 12 and June 29, 1972, respectively, by International Union of Operating Engineers, Local 139, herein called the Union, and duly served on Midwestern Pacific Corporation, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, issued a complaint on June 30, 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)(5), (3), 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 an Administrative Law Judge' were duly served on the parties to this proceeding. With respect to the unfair labor practices the complaint alleges, in substance, that (1) since on or about February 22, 1972, and thereafter, Respondent has discriminatorily refused to recall from layoff its employees, Von Hunter, Stanley Bochanyin, Harvey Kolstad, Ed Guthman, Raymond Wiederhoft, Har- vey Melzova, Ben McCully, and other employees not presently known to the Regional Director, all because of their concerted protected activity in, membership in, and sympathies for the Union; (2) since on or about April 1, 1970, Respondent and the Union had been parties to a collective-bargaining agreement which expired May 31, 1972, and pur- suant to which Respondent recognized the Union as the exclusive bargaining representative for purposes of negotiating the wages, hours, and other terms and conditions of employment for Respondent's employ- ees in an appropriate unit consisting of all heavy equipment operators and other employees in the jurisdiction of the Union; and (3) since on or about February 22, 1972, and thereafter, Respondent has failed and refused to bargain in good faith with the Union by bargaining directly and individually with employees in the unit described above, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, in derogation of the Union's status as the collective-bargaining representative of these employees. By the aforesaid I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. acts, described above, the complaint alleges that Respondent has violated Section 8(a)(1), (3), and (5) of the. Act. The Respondent failed to file an answer to the complaint. On August 7, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment based on the Respondent's failure to file a timely answer as required by the Board's Rules and Regulations. Subsequently, on August 18, 1972, the Board issued an order transfer- ring 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 the 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 stated that unless an answer was filed to the complaint within 10 days from the service thereof "all of the allegations of the com- plaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, according to the Motion for Summary Judgment, after the time for filing an answer had expired, counsel for the General Counsel telephoned Respondent's president, Gwyn J. Johnson, requesting that Respondent file its answer by the close of business on August 2, 1972. On July 28, 1972, counsel for the General Counsel wrote a confirming letter again requesting that 200 NLRB No. 49 MIDWESTERN PACIFIC CORPORATION 323 Respondent file its answer by August 2, 1972, and stating that if it had not done so by that date, judgment on the pleadings would be requested. To date Respondent has failed to file an answer to the complaint and has given no reason for its failure to do so. Since the Respondent has not filed an answer within 10 days from the service of the complaint, or at any other time, and since no good cause for such failure has been shown, in accordance with the rule set forth above, the allegations of the complaint herein are deemed to be admitted to be true and are so found to be true. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a Wisconsin corporation, is engaged as a general contractor in the building and construc- tion industry and maintains its principal office in Appleton, Wisconsin. During the past calendar year, a representative period, Respondent purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Wisconsin. 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. 22, 1972, and thereafter, Respondent has failed and refused to bargain in good faith by bargaining directly and individually with unit employees in derogation of the Union's status as collective-bar- gaining representative of these employees. We, accordingly, find that the Respondent, by conduct described above, has since on or about February 22, 1972, and at all times thereafter, refused to bargain collectively with the Union as the exclusive repre- sentative of the employees in the appropriate unit and that by such conduct, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. B. The 8(a)(3) and (1) Violations Since on or about February 22, 1972, and thereaft- er, Respondent has discriminatorily refused to recall from layoff its employees Von Hunter, Stanley Bochanyin, Harvey Kolstad, Ed Guthman, Ray- mond Wiederhoft, Harvey Melzova, and Ben McCully because of their concerted protected activi- ty in, membership in, and sympathies for the Union. We find, accordingly, that Respondent, by the conduct described above, discriminated in regard to the terms and conditions of employment of its employees, thereby discouraging membership in a labor organization, and that by such conduct Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 139, 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 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 heavy equipment operators and other employees in the jurisdiction of the Union." Since on or about April 1, 1970, Respondent and the Union had been parties to a collective-bargaining agreement pursuant to which Respondent recognized the Union as the exclusive collective-bargaining representative for purposes of negotiating wages, hours, and other terms and conditions of employ- ment for Respondent's employees in the unit herein found to be appropriate. Since on or about February The activities of 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)(5), (3), and (1) 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. Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist from bargaining directly and individually with unit employees in 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD derogation of the Union's status as collective-bar- gaining representative, and, upon request, bargain collectively with the Union as the exclusive repre- sentative of all employees in the unit found appropri- ate and, if an understanding is reached, embody such understanding in a signed agreement. Since we have found that Respondent discrimina- torily refused to recall from layoff its employees, Von Hunter, Stanley Bochanyin, Harvey Kolstad, Ed Guthman, Raymond Wiederhoft, Harvey Melzova, and Ben McCully, we shall order that Respondent offer them immediate and full reinstatement to their former jobs or, if such 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 reason of such discrimination, by payment of a sum of money equal to that which they normally would have earned as wages from the date of discrimination against them to the date of said offer of reinstatement, less their net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Since the unfair labor practices committed by the Respondent were 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. Midwestern Pacific Corporation is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 139, is a labor organization within the meaning of Section 2(5) of the Act. 3. All heavy equipment operators and other employees within the jurisdiction of the Union, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing on or about February 22, 1972, and at all times thereafter, to bargain collectively in good faith with the Union as the exclusive bargaining representative of its employees in the appropriate unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of employees because of their union activities, thereby discouraging membership in or activities on behalf of a labor organization, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. By the acts described in section III, A and B, above, Respondent has interfered with, restrained and coerced, and is interfering with, restraining and coercing employees in the exercise of rights guaran- teed to them 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)(5), (3), and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning 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, Midwestern Pacific Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of Operating Engineers, Local 139, in derogation of its status as exclusive bargaining representative of the employees in the following appropriate unit: "All heavy equipment operators and other employees in the jurisdiction of the Union." (b) Discouraging membership in, or activities on behalf of, International Union of Operating Engi- neers, Local 139, or any other labor organization, by failing or refusing to recall from layoff or otherwise discriminating in regard to hire or tenure of employ- ment or any terms or conditions of employment of any of its employees because of their concerted protected activity in, membership in, and sympathies for International Union of Operating Engineers, Local 139. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed them 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 collectively 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 employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to Von Hunter, Stanley Bochanyin, MIDWESTERN PACIFIC CORPORATION Harvey Kolstad, Ed Guthman, Raymond Wieder- hoft, Harvey Melzova, and Ben McCully immediate 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. (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) Make whole the employees named in (b), above, in the manner set forth in the section entitled "The Remedy," for any loss of pay each may have suffered by reason of Respondent's discrimination against him. (e) 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. (f) Post at its Appleton, Wisconsin, office and current area worksites copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 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 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 refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Inter- national Union of Operating Engineers, Local 325 139, as the exclusive representative of the employ- ees in the bargaining unit described below by bargaining directly and individually with unit employees in derogation of the above labor organization's status as collective-bargaining rep- resentative. WE WILL NOT discourage membership in, or activities on behalf of, International Union of Operating Engineers, Local 139, or any other labor organization , by failing or refusing to recall from layoff or otherwise discriminating in regard to hire or tenure of employment or any terms or conditions of employment of any of our employ- ees because of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as exclusive representative 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 agreement . The bar- gaining unit is: All heavy equipment operators and other employees in the jurisdiction of the Union. WE WILL offer to Von Hunter, Stanley Bocha- nyin, Harvey Kolstad, Ben McCully, Ed Guth- man, Raymond Wiederhoft, and Harvey Melzova immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, if necessary, by discharging other employees who may have replaced them. WE WILL make whole the employees named above for any loss of pay each may have suffered as a result of the discrimination practiced against him. All employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. MIDWESTERN PACIFIC CORPORATION (Employer) Dated By (Representative) (Title) 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 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Forces, in accordance with the Selective Service Act Any questions concerning this notice or compli- and the Universal Military Training and Service Act. ance with its provisions may be directed to the This is an official notice and must not be defaced Board's Office, Second Floor, Commerce Building, by anyone. 744 North Fourth Street, Milwaukee, Wisconsin This notice must remain posted for 60 consecutive 53203, Telephone 414-272-8600, Ext. 3861. days from the date of posting and must not be altered, defaced, or covered by any other material.