Gocat, Inc.

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gocat, Inc. and International Union of Operating Engineers, Local 627. Case 16-CA-8232 July 27, 1981 DECISION AND ORDER Upon a charge filed on December II, 1978, by International Union of Operating Engineers, Local 627, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 16, issued a complaint and notice of hearing on January 17, 1979, against Gocat, Inc., herein Respondent. Copies of the charge and the complaint and notice of hearing were served on Respondent. The complaint alleged that Respondent had en- gaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. The complaint alleged, in substance, that on or about December 7, 1978, Respondent discharged all of its employees and thereafter failed and refused to reinstate them. On October 30, 1980, the parties executed a stip- ulation of facts in which the parties waived a hear- ing before an administrative law judge and agreed to submit the case to the Board for findings of fact, conclusions of law, and Decision and Order, based on a record consisting of the stipulation of facts and the exhibits attached thereto. On December 19, 1980, the Board approved the stipulation of the parties and ordered the case transferred to the Board, granting permission for the filing of briefs. Thereafter, both the General Counsel and Respondent filed briefs. Upon the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the fo11owing: FINDINGS OF FACT I. JURISDICTION Respondent is a corporation duly organized under and existing by virtue of the laws of the State of Oklahoma, with an office and mining oper- ation located in Okmulgee, Oklahoma, where it is engaged in the strip mining of coal. Respondent admits, and we find, that Respond- ent is engaged in commerce and in operations af- fecting commerce as defined in Section 2(6) and (7) of the Act. We also find that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION Respondent admits, and we find, that the Union is a labor organization as defined in Section 2(5) of the Act. 257 NLRB No. 30 Ill. THE UNFAIR LABOR PRACTICES A. Facts The parties' stipulation shows these facts: A charge was filed by the Union on December 11, 1978, alleging that Respondent discharged 17 employees because of their membership and activi- ties on behalf of the Union. The Acting Regional Director issued a complaint on January 17, 1979. The complaint alleged that on or about November 15, 1978, Respondent through its agents interfered with, restrained, and coerced its employees at its Okmulgee, Oklahoma, facility, in the exercise of the rights guaranteed them by Section 7 of the Act by oraUy threatening an employee with the loss of his job if said employee discussed the Union with other employees. The complaint further alleged that on or about December 7, 1978, Respondent discharged all of its employees, "including, but not limited to," and naming 17 specific employees, because those em- ployees joined, supported, or assisted the Union or engaged in other union or concerted activity for the purposes of co11ective bargaining or other mutual aid or protection. The acts the complaint a11eged constitute unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and (3) and Section 2(6) and (7) of the Act. Respondent's answer of January 27, 1979, ad- mitted that it terminated all employees working at Gocat Mine No. 1, but denied that the terminations were related to union or other concerted activites or that such action constituted an unfair labor prac- tice within the meaning of the Act. Respondent al- leged that the terminations were lawful and justi- fied by its legitimate business interests. Respondent filed an amended answer on April 30, 1979, stating that one of the individuals, Jack R. Richy, named in the complaint as a discriminatee, was a supervi- sor as defined in Section 2(11) of the Act. 1 The General Counsel issued an amended com- plaint and notice of hearing on September 12, 1980, alleging that Respondent and the Union had en- tered into a settlement agreement, approved by the Regional Director on June 12, 1980. The settlement agreement provided that Respondent would pay certain amounts of money to named individuals. The amended complaint a11eged that Respondent refused to comply with the provisions of the settle- ment agreement, which agreement had been vacat- ed and set aside by the Regional Director by letter dated September 11, 1980 .. 1 The stipulation provides for the deletion of the name Jack R. Richy from the list of names in par. ll of the amended complaint dated Septem· ber 12, 1980. GOCAT, INC. 271 Respondent's answer of September 19, 1980, ad- mitted the allegations with respect to entering into and fai1ing to comply with the terms of the settle- ment agreement. Respondent continued to deny the allegations, maintaining that the discharges were for good cause and alleging that it offered recall on May 22, 1979, to all except Supervisor Jack Richy. On October 20, 1980, the General Counsel amended paragraph 11 of the complaint by insert- ing the name Jerry Wayne Duke as one of the em- ployees allegedly discharged for exercising his Sec- tion 7 rights. This was followed on October 30 by Respondent's amended answer including an affirm- ative defense that the addition of the name of Jerry Wayne Duke on October 20 was time-barred by Section IO(b) of the Act inasmuch as the original charge had been filed on December 11, 1978. Thereafter the parties entered into a stipulation executed on October 30, 1980, in which Respond- ent admits to all allegations in the complaint. How- ever, Respondent maintains, and the parties stipu- late, that the sole issue before us is whether the amendment to the complaint with respect to the addition of Jerry Wayne Duke is time-barred by Section 10(b) of the Act. B. Discussion The General Counsel contends that it was within the Regional Director's permissible discretion under Section lO(b) of the Act for him to amend the complaint on October 20, 1980, to include dis- chargee Duke. According to the General Counsel, the amendment to the complaint was closely relat- ed to the violations alleged in the charge. There- fore, the General Counsel submits that, since Re- spondent has admitted the violations of Section 8(a)(l) and (3) of the Act, Duke should be included as to the remedy. Respondent, in support of its lO(b) contention, argues that the charge as filed did not inform Re- spondent of the nature of the alleged violation as it relates to Duke, thus resulting in prejudice. There- fore, the amended complaint should be dismissed. It has long been held that where a charge is filed within 6 months after the alleged violations the ad- dition of discriminatees is not barred by Section IO(b) of the Act. The effect of Section 10(b) has been summarized as follows: (1) A complaint, as distinguished from a charge, need not be filed and served within the 6 months and may therefore he amended after the 6 months. (2) If a charge was filed and served within 6 months after the viola- tions alleged in the charge, the complaint (or amended complaint), although filed after the 6 months, may allege violations not alleged in the charge if they (a) are closely related to the viola- tions named in the charge, and (b) occurred within 6 months before the filing of the charge. 2 The stipulated documents in this case show both conditions are satisfied here. Accordingly, the original charge alleges that on or about December 5, 1978, Respondent terminated 17 named individ- uals at the Gocat Mine No. 1 because of their membership and activities in the Union, thereby en- gaging in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act. Since Respondent admits that it discharged the employees, including employee Duke, because of their union activities and since Duke's discharge occurred at the same time and place as the dis- charges of the 17 other employees of Respondent, it appears that Duke's discharge was "closely relat- ed to the violations named in the charge." 3 More- over, Duke's discharge "occurred within six months before the filing of the charge," thus satis- fying the second condition of Dinion.4 It should also be noted that the charge in the in- stant case notified Respondent that it was charged not only with specific violations of the Act, but also with "other acts of conduct" which "inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act." Such language has been held to form a "suf- ficient basis for later specific allegations." Further- more, the following language appeared in the origi- nal complaint and the amended complaint: On or about December 7, [1978] Respondent discharged all of its employees, including, but not limited to . . . . Thus Respondent was clearly put on notice long before October 20, 1980, of possible additions to the list of dischargees alleged as violative of Sec- tion 8(a)(3). We find, therefore, that the addition of discri- minatee Duke to the complaint is not barred by Section IO(b) of the Act and that Respondent's contention that the charge did not inform it of the nature of the alleged violations as to Duke is ill founded. On the basis of the foregoing finding, and in view of Respondent's admission that it discharged its employees because of their union or concerted activity, as alleged in the complaint, we conclude that, by its discharge and refusal to reinstate Daniel Lee Stark, Gary Hooper, Gary Warren, Dennis Stanfield, Booker T. Mangum, Charles L. Johnson, Elmer Crittendon, Carey Stanfield, Mike Stark, J. 2 N.L.R.B. v. Dinion Coil Co .• 201 F.2d 484, 491 (2d Cir. ]952). 3 !d. • North American Rockwell Corporation v. l\'.L.R.B., 389 F.2d 866 (lOth Cir. 1968) 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD R. Fuller, Alan L. Gurtler, Kenneth R. Sherril, Johnny D. Griffin, Johnnie L. Wiley, Don Hale, Ashley Bear, and Jerry Wayne Duke, Respondent violated and is violating Section 8(a)(3) and ( 1) of the Act. Furthermore, Respondent has admitted that it had interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act by orally threatening an employee with the loss of his job if said employ- ee engaged in conversations about a union with the other employees. We therefore find that Respond- ent violated and is violating Section 8(a)(l) of the Act. IV. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (l) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. Having found that Respondent discharged em- ployees Daniel Lee Stark, Gary Hooper, Gary Warren, Dennis Stanfield, Booker T. Mangum, Charles L. Johnson, Elmer Crittendon, Carey Stan- field, Mike Stark, J. R. Fuller, Alan L. Gurtler, Kenneth R. Sherril, Johnny D. Griffin, Johnnie L. Wiley, Don Hale, Ashley Bear, and Jerry Wayne Duke, we shall order Respondent to offer said em- ployees immediate and fu]] reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, 5 without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings that they may have suffered as a result of the discrimination against them. Backpay with in- terest thereon is to be computed in the manner pre- scribed in F. W Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).6 CONCLUSIONS OF LAW I. Gocat, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. • The General Counsel alleges that the Gocat Mine No. 1 is closed and therefore requests that Respondent be ordered to reinstate the discrimina- tees at any of its mines in operation at the time of the Board's Order and give the discriminatees the option of choosing the mine location which is most convenient. This allegation is outside the scope of the stipulation, and we leave to the compliance stage of these proceedings the question of what constitutes a substantially equivalent position for purposes of our Order. • See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962). Member Jenkins would provide interest on the backpay award in accord- ance with his partial dissent in Olympic Medical Corpora1ion, 2SO NLRB 146 (1980). 2. International Union of Operating Engineers, Local 627, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging employees Daniel Lee Stark, Gary Hooper, Gary Warren, Dennis Stanfield, Booker T. Mangum, Charles L. Johnson, Elmer Crittendon, Carey Stanfield, Mike Stark, J. R. Fuller, Alan L. Gurtler, Kenneth R. Sherril, Johnny D. Griffin, Johnnie L. Wiley, Don Hale, Ashley Bear, and Jerry Wayne Duke and refusing to reinstate them, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By orally threatening an employee with the loss of his job if said employee engaged in conver- sation about a union with the other employees, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 5. 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 lO(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Gocat, Inc., Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge be- cause of their union activities. (b) Discharging or otherwise discriminating against employees because of their interest in, or activity on behalf of, a labor organization. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer employees Daniel Lee Stark, Gary Hooper, Gary Warren, Dennis Stanfield, Booker T. Mangum, Charles L. Johnson, Elmer Crittedon, Carey Stanfield, Mike Stark, J. R. Fuller, Alan L. Gurtler, Kenneth R. Sherril, Johnny D. Griffin, Johnnie L. Wiley, Don Hale, Ashley Bear, and Jerry Wayne Duke immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed, and make them whole for any loss of earnings they may have suf- fered by reason of the discrimination against them in the manner set forth in the section herein enti- tled "The Remedy." GOCAT, INC. 273 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, 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 Tulsa, Oklahoma, place of business copies of the attached notice marked "Appendix."7 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shaH be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including 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. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7 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 Coun 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 After a hearing at which a11 sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or a11 such activities. WE WILL NOT threaten you with discharge because of your union activities. WE WILL NOT discharge or otherwise dis- criminate against you with regard to hire or tenure of employment because of your interest in, or activity on behalf of, a labor organiza- tion. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by the Act. WE WILL offer Daniel Lee Stark, Gary Hooper, Gary Warren, Dennis Stanfield, Booker T. Mangum, Charles L. Johnson, Elmer Crittendon, Carey Stanfield, Mike Stark, J. R. Fuller, Alan L. Gurtler, Kenneth R. Sherril, Johnny D. Griffin, Johnnie L. Wiley, Don Hale, Ashley Bear, and Jerry Wayne Duke immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges prevuously enjoyed, and WE WILL make them whole for any Joss of earnings they may have suffered by reason of our unlawful discharge of them, with interest. GOCAT, INC.