Ancorp National Services, Inc.

ANCORP NATIONAL SERVICES , INC. 513 Ancorp National Services, Inc., Casco Division and District # 2, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC. Case 1-CA-8541 March 20, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon charges filed on August 28, 1972, and amended September 7, 1972, by District #2, International Union of Electrical Radio and Ma- chine Workers, AFL-CIC-CLC, herein called the Union, and duly served on Ancorp National Serv- ices, Inc., Casco Division, herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on October 18, 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)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, amended charge 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 Respondent: unlawfully interrogated its employees concerning their union membership and activities ; threatened employees with loss of health insurance and other economic benefits ; threatened employees with dis- charge and other reprisals if they became or remained union members ; exercised surveillance over union meetings and activities ; subjected a union adherent to unreasonable supervision and work standards ; discharged employee James McFall for his union activities ; and refused to bargain with the Union, which is the exclusive bargaining representa- tive of its employees in an appropriate unit. On November 10, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment based upon Respondent 's fail- ure to file an answer as required by Section 102.20 of the Board's Rules and Regulations, Series 8, as amended . The Board, on November 28, 1972, 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. On December 12, 1972, Respondent filed an answer to the notice to show cause,' with an attached answer to the complaint and notice of hearing, in which it alleged that the complaint was inadvertently filed away and no answer was filed because of the serious illness and consequent absence of Respondent's vice president who was in charge of its labor relations. In the attached answer to the complaint and notice of hearing Respondent denied certain averments of the complaint and stated that it had no comment with respect to others. On January 23, 1973, the General Counsel filed a renewed motion for summary judgment and/or to reject or strike Respondent's pleadings. 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 provides in pertinent part 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 served on the Respondent specifi- cally stated that, unless an answer to the complaint was filed within 10 days from the service thereof, "all of the allegations in the complaint shall be deemed to be admitted to be true and may be so found by the Board." The complaint issued October 18, 1972. On November 6, 1972, 16 days after issuance of the complaint, counsel for the General Counsel tele- phoned the office of Mr. John Scully,2 Respondent's vice president in charge of labor relations, and was informed by the latter's assistant that Mr. Scully was not in his office but would be in later in the afternoon. After pointing out the consequences of ' Apparently this pleading was not served on counsel for the General of January 17, 1973. Counsel, as it has attached to it acknowledgments of receipt thereof only by E The facts concerning these communications are set forth by the the Union and the attorney for the alleged discnmmatee, and the General General Counsel in the Motion for Summary Judgment and are conceded Counsel asserts in his renewed motion that it had not been served on him as by the Respondent 202 NLRB No. 71 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's failure to answer the complaint and noting that it would be the same result that occurred on May 10, 1972, when the Board granted Summary Judgment against the Respondent, under similar circumstances, in a case reported at 196 NLRB No. 147, counsel for the General Counsel left a message for Mr. Scully and was assured that the latter would be fully informed on the matter. This telephone conversation was confirmed in a letter sent on the same day from the Regional Office by certified mail. As of November 10, 1972, the date the Motion for Summary Judgment was served, no communication from the Respondent had been received. Subsequent to the issuance of the Notice To Show Cause Respondent filed an Answer to Notice To Show Cause and an attached Answer to Complaint and Notice of Hearing. In its answer to the Notice To Show Cause, Respondent, in explanation of its failure to have previously filed an answer asserts, as noted above, that because of the serious illness and consequent absence from the office of Vice President Scully, the complaint herein was inadvertently filed away and no answer was filed. It further asserts that no answer was filed on November 6, 1972, the day of the telephone call from the Board attorney, because Mr. Scully was working on a limited and part-time basis on that date. Under these circumstances and noting that Respondent did not timely request an extension of time, we do not deem Respondent's explanations to constitute good cause, within the meaning of Section 102.20 of the Board's Rules and Regulations, for failure to file an answer to the complaint. 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 I. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, with an office and place of business in Hyde Park, Massa- chusetts, is engaged in the preparation and sale of background music from electrical sound equipment. During the past year Respondent shipped and transported products valued in excess of $50,000 from its place of business in interstate commerce directly to States of the United States other than the Commonwealth of Massachusetts. During the same period, Respondent received goods valued in excess of $50,000 transported to its place of business in interstate commerce directly from States of the United States other than the Commonwealth of Massachusetts. We find, on the basis of the foregoing that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED District #2, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES By refusing, upon request, on or about June 26, 1972, and again on July 10, 1972, and at all times thereafter, to bargain collectively and in good faith with the above-named labor organization with respect to rates of pay, wages, hours, and other terms and conditions of employment of the employees of Respondent in the appropriate unit for a collective- bargaining agreement, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. By discriminating with regard to the hire and tenure of James McFall, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. By subjecting employee James McFall to excessive- ly close and unreasonable supervision and discrimi- natorily applying work rules and unusual or artificial work standards against him, threatening employees with discharge or other reprisals if they became or remained members of the above-named labor organi- zation, interrogating its employees concerning their union membership, activities, and desires, and by the aforesaid refusal to bargain, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and attempted to undermine the Union and dissipate its majority, thereby committing unfair labor practices affecting commerce within the mean- ing of Section 8(a)(1) of the Act. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 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 ANCORP NATIONAL SERVICES, INC. tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce thereof. 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. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Ancorp National Services, Inc., Casco Division is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District #2, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance workers including installers of Respondent employed at its 56 Glenwood Avenue, Hyde Park, Massachusetts, location, exclusive of office clerical employees, professional employees, guards and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act. 4. Since May 12, 1972, the above-named labor organization has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By the acts described in section III, above, 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. 6. 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 the Respondent, Ancorp National Services, Inc., Casco Division, Hyde Park, Massachusetts, its officers, agents, successors and assigns, shall: 1. Cease and desist from: 515 (a) Discouraging membership in District #2, International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO-CLC, or in any other labor organization of its employees by discharging employees, or in any other manner, discriminating against them in regard to hire or tenure of employ- ment or any term or condition of employment. (b) Coercively, or otherwise unlawfully, interrogat- ing its employees as to their union activities, or about the union activities of other employees. (c) Threatening its employees with discharge or economic reprisals because they joined or remained members of the Union or gave it any assistance or support. (d) Subjecting its employees to excessively close and unreasonable supervision and discriminatonly applying unusual or artificial work standards against them because they became or remained members of the union and in order to discourage union activity among its employees. (e) Failing or refusing to bargain collectively with District #2, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, as the exclusive representative of its employees in the appropriate unit described below. The bargaining unit is: All production and maintenance workers, includ- ing installers of Respondent employed at its 56 Glenwood Avenue, Hyde Park, Massachusetts location, exclusive of office clerical employees, professional employees, guards and all supervi- sors as defined in Section 2(11) of the Act. (f) In any other manner interferring with, restrain- ing, or coercing employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, and to refrain from any and all of such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to James McFall immediate and full reinstatement to his former or substantially equiva- lent position, without prejudice to his seniority or other rights and privileges. (b) Make whole James McFall in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 with interest calculated as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (c) 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 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Upon request, bargain collectively with District #2, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, with respect to rates of pay, wages, hours, and other terms and conditions of employment for a collective-bargaining agreement, and if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its facility in Hyde Park, Massachusetts, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 1, 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 thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 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 discourage membership in District # 2, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, or in any other labor organization of our employees or attempt to undermine or destroy its majority representation among our employees by discharging any of our employees, or by discrimi- nating against them in any other manner in regard to the hire or tenure, or any other term or condition of employment. WE WILL NOT coercively , or otherwise unlaw- fully question employees as to their union affiliations or activities. WE WILL NOT threaten our employees with discharge or economic reprisals - because they joined or remained members of the Union or gave it any assistance or support. WE WILL NOT subject our employees to exces- sively close and unreasonable supervision or discriminatorily apply unusual and artificial work standards against them because they became or remained members of the Union or gave it any assistance or support. WE WILL offer James McFall immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of discrimination against him. WE WILL NOT refuse to bargain collectively with District #2, International Union of Electri- cal, Radio and Machine Workers, AFL-CIO- CLC, as the exclusive representative of our employees in the appropriate unit described below. The bargaining unit is: All production and maintenance workers, including installers of Respondent employed at its 56 Glenwood Avenue, Hyde Park, Massachusetts location, exclusive of office clerical employees, professional employees, guards and all supervisors as defined in Section 2(11) of the Act. WE WILL bargain with the above-named Union with respect to rates of pay, wages, hours, and other terms and conditions of employment for a collective-bargaining agreement and, if an under- standing is reached, embody such understanding in a signed agreement. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organiza- tion, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. ANCORP NATIONAL SERVICES, INC., CASCO DIVISION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. ANCORP NATIONAL SERVICES, INC 517 This notice must remain posted for 60 consecutive ance with its provisions may be directed to the days from the date of posting and must not be Board's Office, Bulfinch Building, Seventh Floor, 15 altered, defaced, or covered by any other material. New Chardon Street, Boston, Massachusetts 02114, Any questions concerning this notice or compli- Telephone 617-223-3345.