Kay Industries, Inc.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kay Industries, Inc. and Joseph Dominick. Case 26-CA-4820 February 15, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PFNEI.I.O Upon a charge and amended charges filed on August 6. August 22. and September 17, 1973, respectively, by Joseph Dominick, an Individual, herein called the Charging Party, and duly served on Kay Industries, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 26, issued a complaint on September 21, 1973, 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) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, amended charges, 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) on an unknown date between April 9 and June 13, 1973, the Respondent at its Centerville, Tennessee, plant, solicited and secured from an employee a revocation of a dues-deduction authorization in favor of Local 263 of the Stove, Furnace & Allied Appliance Workers International Union of North America, AFL-CIO, herein called the Union: (2) on an unknown date in June 1973, the Respondent interro- gated an employee concerning his union membership and protected, concerted activities: and (3) on or about June 19, 1973, at its Centerville, 'Iennessee, plant, the Respondent discharged the Charging Party, its employee, because he engaged in union or protected, concerted activities. By the aforesaid acts described above, the complaint alleges that the Respondent has violated Section 8(a)(1) and (3) of the Act. The Respondent failed to file an answer to the complaint. On October 15, 1973, counsel for the General Counsel filed directly with the Board a motion for summary judgment ybased upon the Respondent's failure to file a timely answer as required by the Board's Rules and Regulations. Subsequently, on October 23, 1973, the Board issued an order transferring the proceeding to the Board and a notice to show cause why the General Counsel's motion for I Radnut fret Paragon De Puerto Rico, Inc. 198 \ LR B No 76 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 is filed to the complaint within 10 days from the service thereof "all of the allegations of the Complaint shall be deemed to be admitted to be true and shall he so found by the Board." Further, according to the motion for summary judgment, on September 26, 1973. the Acting Regional Director sent the Respon- dent a copy of a letter, addressed to the Respon- dent's attorney, confirming a telephone conversation in which the attorney announced his withdrawal from the case and notifying the Respondent that a motion for summary judgment would be filed if an answer were not filed by the due date of October 4, 1973. To date the Respondent has failed to file an answer to the complaint and, has not filed a response to our notice to show cause within 10 days from the service of the complaint, or at any other time. No good cause for the failure to file an answer having been shown, in accordance with the rule set forth above, the allegations of the complaint herein are deemed to be admitted and are found to be true.' We shall, accordingly, grant the motion for summary judgment. 209 NLRB No. 9 KAY INDUSTRIES, INC. 85 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a corporation, has an office and place of business in Centerville, Tennessee, where it is engaged in the manufacture, sale, and distribution of mobile homes. Since it commenced business opera- tions on or about April 1, 1973, the Respondent has purchased and received goods valued in excess of $50,000 directly from points located outside the State of Tennessee. and, during the same period of time, it has sold and shipped goods valued in excess of $50,000 directly to points located outside the State of Tennessee. 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. 11. THE LABOR ORGANIZATION INVOLVED Local 263 of the Stove, Furnace & Allied Appli- ance Workers International Union of North Ameri- ca, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. IHE UNFAIR LABOR PRA('TiCIS A. The Independent 8(a)(1) Violations On an unknown date between April 9 and June 19, 1973, at its Centerville, Tennessee, plant, the Respon- dent. by its supervisor and agent, Clarence Floyd. solicited and secured from an employee a revocation of a union dues-deduction authorization. On an unknown date in June 1973, the Respondent, by the aforesaid Clarence Floyd, interrogated an employee concerning his union membership and activities. Accordingly, we find that, by the aforesaid con- duct, the Respondent has 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 the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. B. The 8(a)(3) and (1) Violations On or about June 19, 1973, at its Centerville, Tennessee, plant, the Respondent discharged its employee, Joseph Dominick, because said employee engaged in union or protected, concerted activities. Accordingly, we find that the Respondent, by the aforesaid conduct, discriminated in regard to the terms and conditions of employment of its employ- ees, thereby discouraging membership in a labor organization, and that by such conduct the Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. IV. 'IHE CFFFCT OT 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 tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. I HE REMLDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) 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. Since we have found that the Respondent discrimi- natorily discharged employee Joseph Dominick, we shall order that the Respondent offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of such discrimination, by payment of a sum of money equal to that which he normally would have earned as wages from the date of discharge to the date of said offer of reinstatement, less his 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. As 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: 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Kay Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 263 of the Stove, Furnace & Allied Appliance Workers International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct enumerated in section III, Respondent has interfered with, restrained, coerced, and discriminated against, and is interfering with, coercing, restraining, and discriminating against, employees in the exercise of the rights guaranteed 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)(1) and (3) 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, Kay Industries, Inc., Centerville, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Local 263 of the Stove, Furnace & Allied Appliance Workers International Union of North America, AFL-CIO, or any other labor organization, by discharging or otherwise discriminating in regard to hire or tenure of employment of any of its. employees because of their union or protected, concerted activities. (b) Soliciting and securing from employees revoca- tion of union dues-deduction authorizations. (c) Interrogating employees concerning their union membership or protected, concerted activities. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the 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) Offer Joseph Dominick immediate and full reinstatement to his former job at the Respondent's plant or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of Respondent's discrimination against him in the manner set forth in the section herein entitled "The Remedy." (b) 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. (c) Post at its Centerville, Tennessee, plant copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 26, 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 thereaft- er, in conspicuous 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. (d) Notify the Regional Director for Region 26, 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 discourage membership in or activities on behalf of Local 263 of the Stove, Furnace & Allied Appliance Workers Interna- tional Union of North America, AFL-CIO, or any other labor organization, by discharging or otherwise discriminating in regard to hire or tenure of employment of any of its employees because of their union or protected, concerted activities. WE WILL NOT solicit and secure from employ- ees revocation of union dues-deduction authori- zations. WE WILL NOT interrogate employees concern- ing their union membership or protected, concert- ed activities. 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 offer to Joseph Dominick immediate and full reinstatement to his former job at our KAY INDUSTRIES, INC. 87 plant or, if that job no longer exists, to a substantially equivalent position , without preju- dice to his seniority or other rights and privileges previously enjoyed, and WE WILL make him whole for any loss of earnings suffered by reason of the discrimination practiced against him. 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 he directed to the KAY INDI SI RIES, INC. Board's Office, Clifford Davis Federal Building, (Employer) Room 746. 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. Dated By (Representative) (Title)