Wakefield Industries, Inc.

WAKEFIELD INDUSTRIES, INC. 289 Wakefield Industries, Inc., and Wakefield Industries, Inc., Division of Capehart Corporation and Dis- trict Lodge 104, International Association of Machinists & Aerospace Workers, AFL-CIO. Case 39-CA-259 June 2, 1981 DECISION AND ORDER Upon a charge filed on June 6, 1980, by District Lodge 104, International Association of Machinists & Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Wakefield Indus- tries, Inc., and Wakefield Industries, Inc., Division of Capehart Corporation, herein collectively called Respondent, the General Counsel of the National Labor Relations Board, by the Officer-In-Charge for Subregion 39, issued a complaint on July 31, 1980, 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) and (1), and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. Re- spondent failed to file an answer to the complaint. On February 23, 1981, counsel for the General Counsel filed directly with the Board in Washing- ton, D.C., a Motion for Summary Judgment, with exhibits attached. Subsequently, on February 27, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent did not file a response to the Board's Notice To Show Cause and the averments of the Motion for Summary Judgment stand uncontroverted. 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 there- to. 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 256 NLRB No. 46 so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing served on Respondent specifically stated that unless an answer was filed to the complaint within 10 days from the service thereof "all of the allegations in the complaint shall be deemed to be admitted to betrue and shall be so found by the Board." Fur- ther, according to the Motion for Summary Judg- ment, counsel for the General Counsel informed Respondent by letter dated February 9, 1981, that if Respondent did not file an answer by February 13, 1981, summary judgment would be sought. As noted above, Respondent failed to answer the com- plaint or respond to the Notice To Show Cause. Accordingly, under the rule set forth above, no good cause having been shown for the failure to file an answer, the allegations of the complaint are deemed admitted and are found to be true, and we 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 RESPONDENT Wakefield Industries, Inc., a Delaware corpora- tion with its principal office and place of business at Fifth Street, Norwich, Connecticut (herein called the Norwich facility), is engaged in the man- ufacture, assembly, and nonretail sale and distribu- tion of stereo cabinets and related products, having purchased the entire operation of Wakefield Indus- tries, Inc., Division of Capehart Corporation, a Connecticut corporation, on or about February 1, 1980. Since that date, Wakefield Industries, Inc., has been engaged in the same business operation, at the same location, selling the same products to sub- stantially the same customers as Wakefield Indus- tries, Inc., Division of Capehart Corporation, and has as a majority of its employees individuals who were previously employees of that Company.' Ac- cordingly, we find that Wakefield Industries, Inc., is an alter ego of, and single employer with, Wake- field Industries, Inc., Division of Capehart Corpo- ration. During the 12-month period ending February 1, 1980, Wakefield Industries, Inc., Division of Cape- hart Corporation, sold and shipped from the Nor- wich facility products, goods, and materials valued ' Marvin Margolis. president and majority stockholder; David Luchs. vice president, plant superintendent, and stockholder; and Noni Haley, treasurer, of Wakefield Industries, Inc., Division of Capehart Corpora- tion, occupy the same respective positions in Wakefield Industries, Inc. WAKEFIELD NDUSTRIES, INC. 289 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in excess of $50,000 to points outside the State of Connecticut. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) amd (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED District Lodge 104, International Association of Machinists & Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 11I. THE UNFAIR LABOR PRACTICES A. The Unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees of Respondent, excluding only executive, office, and clerical employees, designers, and drafts- men, foreperson, assistant foreperson, and su- pervisors with authority to hire, promote, dis- charge or effectively recommend such action. The Union has been the collective-bargaining representative of the employees in said unit since it was certified on July 12, 1954, and it continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Refusal To Bargain On or about June 4, 1980, Wakefield Industries, Inc., repudiated the collective-bargaining agree- ment, effective from August 13, 1979, until April 15, 1981, which had been executed by the Union and Wakefield Industries, Inc., Division of Cape- hart Corporation, and which Wakefield Industries, Inc., voluntarily accepted and adopted on or about February 1, 1980. Since June 4, 1980, Respondent has refused to pay vacation benefits due under the collective-bargaining agreement. Accordingly, we find that, by the conduct de- scribed above, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in the sec- tion III, above, occurring in connection with its operations 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 ob- structing 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) and (1), we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectuate the poli- cies of the Act. We will, inter alia, order Respondent to give effect to the terms and provisions of the collective- bargaining agreement retroactively to June 4, 1980. We will also order Respondent to make whole its employees for their loss of wages and other bene- fits, including vaction benefits, which are provided for in said collective-bargaining agreement, for the period on and after June 4, 1980, plus interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977).2 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Wakefield Industries, Inc., and Wakefield In- dustries, Inc., Division of Capehart Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge 104, International Association of Machinists & Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of Respondent, excluding only executive, office, and clerical employees, designers, and draftsmen, fore- person, assistant foreperson, and supervisors with authority to hire, promote, discharge or effectively recommend such action, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since July 12, 1954, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By repudiating on or about June 4, 1980, the collective-bargaining agreement with the Union, and by refusing to pay vacation benefits due under 2 In accordance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. WAKEFIELD INDUSTRIES, INC 291 the collective-bargaining agreement from on or about the same date, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce 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 Re- lations Board hereby orders that the Respondent, Wakefield Industries, Inc., and Wakefield Indus- tries, Inc., Division of Capehart Corporation, Nor- wich, Connecticut, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Refusing to bargain collectively regarding wages, hours, and other terms and conditions of employment with District Lodge 104, International Association of Machinists & Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the following appropriate unit: All production and maintenance employees of Respondent, excluding only executive, office, and clerical employees, designers, and drafts- men, foreperson, assistant foreperson, and su- pervisors with authority to hire, promote, dis- charge or effectively recommend such action. (b) Repudiating and refusing to abide by its col- lective-bargaining agreement with the Union, effec- tive from August 13, 1979, and refusing to pay va- cation benefits due under its terms. (c) In any like or related manner interfering with, restraining, or coercing its 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) Upon request, bargain collectively with the Union as the exclusive representative of the em- ployees in the appropriate unit described above re- garding wages, hours, and other terms and condi- tions of employment. (b) Give effect to the terms and provisions of the collective-bargaining agreement, including its vaca- tion benefit provisions, retroactively to June 4, 1980. (c) Make whole its employees for their loss of wages and other benefits, including vacation bene- fits, which are provided for in the collective-bar- gaining agreement, as provided in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, 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 Norwich, Connecticut, facility copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Of- ficer-In-Charge for Subregion 39, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees 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. (f) Notify the Officer-In-Charge for Subregion 39, 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 Pursu- ant 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 regarding wages, hours, and other terms and conditions of employment with District Lodge 104, International Association of Machinists & Aerospace Workers, AFL-CIO, as the exclu- sive representative of the employees in the fol- lowing appropriate unit: All production and maintenance employees excluding only executive, office, and clerical employees, designers, and draftsmen, fore- person, assistant foreperson, and supervisors with authority to hire, promote, discharge or effectively recommend such action. WE WILL NOT repudiate or refuse to abide by our collective-bargaining agreement with the Union, effective from August 13, 1979, and refuse to pay vacation benefits due under its terms. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. WAKEFIELD INDUSTRIES, INC. 291 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request, bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit de- scribed above regarding wages, hours, and other terms and conditions of employment. WE WILL give effect to the terms and provi- sions of our collective-bargaining agreement, including its vacation benefit provisions, retro- actively to June 4, 1980. WE WILL make whole our employees for their loss of wages and other benefits, includ- ing vacation benefits, which are provided for in our collective-bargaining agreement, for the period on and after June 4, 1980, plus interest. WAKEFIELD INDUSTRIES, INC., AND WAKEFIELD INDUSTRIES, INC., DIVI- SION OF CAPEHART CORPORATION