American Steel Line Co.

AMERICAN STIEI. [lNE C() American Steel Line Co. and Local No. 527, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 7-CA-17551 and 7-CA-17551(2) November 19, 1980 DECISION AND ORDER BY MI MBIERS JNKINS. PN.I I.O, ANI) TRtULSI)AI I Upon a charge filed on March 24, 1980,' and amended on May 16, and another charge filed on April 17, by Local No. 527, International Brother- hood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, herein called the Union, and duly served on American Steel Line Co., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 7, issued a complaint on May 30, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5), (4), 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. With respect to the unfair labor practices, the complaint alleges in substance that on September 11, 1979, following a Board election in Case 7-RC- 15453, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; that commencing on or about January 18, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representa- tive by laying off employees and establishing a system of recalling or reemploying employees without prior notice to or bargaining with the Union; and that on or about April 2 Respondent discharged employee Lee Muscato because he par- ticipated in filing a charge under the Act. In a letter to the Regional Director for Region 7, dated June 18, Respondent's general manager stated, inter alia: The American Steel Line Company denies guilt of any unfair labor practices. We are able to prove that. On the other hand, the Team- sters, through some of their officials, are guilty, not only of unfair practices, but of il- legal and even criminal actions. We are able to prove that also. The prosecution of such of- fences [sic] belongs in the Civil or Criminal ' All dates herein arc in 19I() unless olher is indlialed 253 NLRB No. 46 Courts and are outside the jurisdiction of the National Labor Relations Board. We. there- fore, will reserve such proof to be heard in courts of record and will merely enumerate some of these misdeeds. The letter then listed specific charges against the Teamsters that were not relevant to the complaint allegations. In response to this communication, in a letter dated June 27. the Regional Director in- formed Respondent that the Regional Office was uncertain whether the aforementioned letter was intended to constitute Respondent's answer to the complaint and, if such were the case, the Regional Office wished to be so notified in writing. Further, Respondent was advised that its June 18 letter did not comply with Sections 102.20 and 102.21 of the Board's Rules and Regulations, Series 8, as amend- ed, regarding a proper answer. The Regional Di- rector then extended the date for submission of such an answer to July 7. In an affidavit dated August 8. the Regional Director asserted that, as of that date, no correspondence had been received from Respondent other than the June 18 letter and, thus, no proper answer had been filed. Thereafter, on August 12, counsel for the Gener- al Counsel filed directly with the Board motions to transfer the case to the Board and for a judgment on the pleadings based on Respondent's failure to file a proper answer as of the date of its motion under Sections 102.20 and 102.21 of the Board's Rules and Regulations. Subsequently, on August 18, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's motion should not be granted, stating that a response should be filed on or before September 2. Respondent thereafter timely filed a response which merely reiterated the allegations contained in its June 18 letter. In part, the response stated: The American Steel Line Company has an- swered all complaints made by the Teamsters and the National Labor Relations Board by Certified Mail. In our answers, we filed our complaints against the Teamsters. If this was not satisfactory, the National Labor Relations Board should have sent someone to assist us. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: DECISIONS OF NATIONAL LABOR RELATIONS OARD 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 complant 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 Respondent specifically stated that, unless an answer is filed to the complaint within !0 days from the service thereof, "all of the allegations in the Consolidated Complaint shall be deemed to be admitted true and may be so found by the Board." As mentioned above, Respondent replied to the complaint by a letter that in essence accused the Union and its officials of engaging in various illegal activities. Respondent was informed by the Region- al Director that its letter did not comply with the Board's Rules regarding valid answers and that it should notify the Regional Office if it wished the aforementioned letter to constitute its answer. In addition, the Regional Director extended the time for submission of a proper answer to July 7. How- ever, the Regional Director received no further communication from Respondent. Assuming, ar- guendo, that the letter was intended to be an answer to the complaint, it is improper under Sec- tion 102.20 of the Board's Rules and Regulations because it does not specifically admit, deny, or ex- plain each of the allegations in the complaint. Therefore, as Respondent has not filed an answer acceptable under the Board's Rules and Regula- tions within 10 days from the service of the com- plaint, or within the extended time afforded it by the Regional Director, and as no good cause for its failure to do so has been shown, in accordance with the rule set forth above, the allegations of the complaint are deemed to be admitted to be true and are so found to be true. Accordingly, we grant the General Counsel's Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RFSPONDENT Respondent American Steel Line Co., an individ- ual proprietorship, at all times material herein, has maintained an office and a place of business at 210 East Broadway Avenue, Muskegon Heights, Michi- gan, the only facility of Respondent involved herein. Respondent is, and has been at all times ma- terial herein, engaged in the fabrication and nonre- tail sale of steel. During the year ending December 31, 1979, a representative period, Respondent pur- chased and caused to be transported and delivered to its Muskegon Heights facility, directly from points located outside the State of Michigan, steel and other goods and material valued in excess of $50,000. 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) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local No. 527, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. II111. THE UNFAIR LABOR PRACTICES A. The Unit and the Union's Representative Status 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 employees employed by Respondent at its facility located at 210 East Broadway Avenue, Muskegon Heights, Michigan; but excluding all office clerical employees, truckdrivers, guards and supervisors as defined in the Act. The Union has been the collective-bargaining representative of the employees in said unit since September 11, 1979, when it was certified by the Board's Regional Director for Region 7 following a secret-ballot election, and continues to be such exclusive representative within the meaning of Sec- tion 9(a) of the Act. B. The 8(a)(5) and (1) Violations On or about January 18, Respondent laid off a substantial number of the employees in the above- described unit without prior notice to or bargaining 400 AMERICAN STEEL LINE CO. with the Union. At the same time, and continuing to date, Respondent, by its agent, James Haan, es- tablished a system of recalling or reemploying em- ployees in the unit based upon terms and condi- tions of employment established without prior notice to and bargaining with the Union. Accordingly, we find that Respondent has since on or about January 18, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. C. The 8(a)(4) and (1) Violation On or about April 2, Respondent by its agent, James Haan, discharged employee Lee Muscato be- cause he had been named as an alleged discrimina- tee in the charge filed in Case 7-CA-17551. Ac- cordingly, we find that Respondent did thereby discriminate, and is discriminating against, employ- ees for filing charges or giving testimony under the Act and thereby did engage in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(4) and (1) 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, 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 unfair labor practices within the meaning of Sec- tion 8(a)(5), (4), and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. We shall, inter alia, require Re- spondent to bargain collectively, upon request, with the Union as the exclusive representative of all employees in the appropriate unit concerning laying off employees and recalling and reemploy- ing employees. We shall also order Respondent to offer all unlawfully laid-off employees and dis- charged employee Lee Muscato unconditional rein- statement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. We shall further order Respondent to make whole each employee for any loss of pay suffered by him or her as a result of Respondent's unlawful refusal to bargain, by paying each a sum of money equal to the amount he or she would have earned as wages from the date of layoff until the date Respondent makes an offer of reinstatement, 2 less net earnings during said period, and similarly to make whole employee Lee Muscato for any loss of earnings he may have suffered by reason of the discrimination practiced against him. Backpay shall be computed in the manner set forth in F. W. Woolworth Compa- ny, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977)." See, gen- erally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Since Respondent has engaged in unfair labor practices of a sufficiently egregious nature as to demonstrate a disregard for its employees' funda- mental statutory rights, and since Respondent is also a repeat offender, 4 we shall order Respondent to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. 5 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. American Steel Line Co. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 527, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent at its facility located at 210 East Broadway Avenue, Muskegon Heights, Michigan; but excluding all office clerical employees, truckdrivers, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Since September 11, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. z See WIllman Industries. Inc., 222 NLRB 2(4, 208 (1976), enfd 94 LRRM 2947, 81 LC '13.137 (D C Cir 1977) 3 Member Jenkins would award interest on the backpay in accordance with the formula set forth in his dissent in Olympic Mledical Corporatlon, 250 NLRB 146 198O) .4mmerican Steel Line Co, 249 NLRB 380 (1980) See Ilickmott Fidc. Inc. 242 N RB 761 (1979) 401 I)tCISIO()NS ()F NA'II()NAI. LAB3()R REl.A'IO()NS BO()ARI) 5. By refusing on or about January 18, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, by laying off employees, and by establishing a system of recall- ing and reemploying employees without prior notice to or bargaining with the Union, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By discharging employee Lee Muscato on or about April 2 because he participated in filing a charge under the Act, Respondent has engaged in an unfair labor practice within the meaning of Sec- tion 8(a)(4) and (1) of the Act. 7. 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, American Steel Line Co., Muskegon Heights, Michigan, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local No. 527, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive bargaining representative of its employees in the appropriate unit, by unilaterally laying off employees and establishing a system of recalling and reemploying employees. The appro- priate unit is: All employees employed by Respondent at its facility located at 210 East Broadway Avenue, Muskegon Heights, Michigan; but excluding all office clerical employees, truckdrivers, guards and supervisors as defined in the Act. (b) Discharging or otherwise discriminating against employees because they participate in filing charges under the Act. (c) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by 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 with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to laying off employees and recalling and reemploying employees. (b) Offer all unlawfully laid-off employees and discharged employee Lee Muscato immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (c) Make all unlawfully laid-off employees and discharged employee Lee Muscato whole for any loss of earnings they may have suffered due to their layoff or discharge in the manner 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 Muskegon Heights, Michigan, fa- cility copies of the attached notice marked "Ap- pendix."' Copies of said notice, on forms provided by the Regional Director for Region 7, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ` I1 the cseilt I hal this ()rdcr is cnilrccd by a Judgment a Uniited Sitttes (r t l F Appc'ls. Iht sords in Ihc lritce reading "l'osted hb ()rde t t Nalnollral I .abr Rinitions lioi.rd shall rctad l'isted pursu- .At t Jdgthin ini t. h tilt' IiteL l Stus Curt if Appeals iLf})rcilng il ()rder ,I the N.iliwi1 I abohr Rcelalnits oillJ APPENDIX Norici. TO EMIPI.OYFIS POSI E:D BY ORI)FR OF THFI NATIONA LABOR RFI.ATIONS BOARD An Agency of the United States Government WI: wn.l. Nor refuse to bargain collectively with Local No. 527, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargain- ing representative of our employees in the bar- gaining unit described below, by unilaterally laying off employees and establishing a system of recalling and reemploying employees. 402 AMERICAN SEI. L INE C) WE Will. NOT discharge or otherwise dis- criminate against employees because they par- ticipate in filing charges under the Act. WE Wll.l NO in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. Wi wil., upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to laying off employees and recalling and reemploying employees. The bargaining unit is: All employees employed by the Employer at its facility located at 210 East Broadway Avenue, Muskegon Heights, Michigan; but excluding all office clerical employees, truckdrivers, guards and supervisors as de- fined in the Act. Wi! wil.l offer all unlawfully laid-off em- ployees and discharged tmployce Lee Muscato immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or any other rights or privileges previously enjoyed. Wu- wl j make all unlawfully laid-off em- ployees and discharged employee Lee Muscato whole for any loss of earnings they may have suffered due to their layoff or discharge, plus interest. AMRICAN ST11:1. .INE CO. 4()3