Boilermakers Local 893 (Stone Johnston)

BOILERMAKERS LOCAL 893 (STONE JOHNSTON) 385 Local 893, International Brotherhood of Boilermak- ers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO-CLC (Stone Johnston Cor- poration) and Larry Lemke. Case 7-CB-7000 22 June 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS Upon a charge filed by Larry Lemke, an individ- ual, on 30 October 1986, the General Counsel of the National Labor Relations Board issued a com- plaint 10 February 1987 against Local 893, Interna- tional Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL- CIO-CLC, the Union or the Respondent, alleging that it has violated Section 8(b)(1)(A) of the Na- tional Labor Relations Act. Although properly served copies of the charge and complaint, the Union has failed to file an answer. On 20 April 1987 the General Counsel tiled a Motion for Default Judgment. On 24 April 1987 the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Union filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board's Rules and Regula- tions provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 14 days of service, "all of the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." Further, the undisputed allegations in the Motion for Default Judgment dis- close that the regional attorney for Region 7, by letter dated 26 February, notified the Union that unless an answer was received by 12 March a Motion for Default Judgment would be filed.1 The regional attorney's 26 February 1987 letter was sent to Respond- ent Local 893's office in Spring Lake, Michigan. On 2 March 1987 Eugene Benkert, Who was Local 893's secretary-treasurer at the time of the filing of the charge and who had received the 26 February 1987 letter, 'advised the regional attorney that Local 893 had been decertified in November 1986, that Local 893 no longer existed, and that the region- al attorney should contact the Union at its International office. By letter dated 5 March 1987 the regional attorney advised the International's office in Kansas City, Kansas, that unless an answer to the complaint was filed by 19 March a Motion for Default Judgment would be filed. In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel's Motion for Default Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION Stone Johnston Corporation, the Employer, a Delaware corporation, is engaged in the manufac- ture, nonretail sale, and distribution of boilers and related products at its facility in Ferrysburg, Michi- gan. During the calendar year ending 31 December 1986, a representative period, the Employer manu- factured, sold, and distributed products valued in excess of $50,000, which were shipped from the Ferrysburg, Michigan plant directly to points locat- ed outside the State of Michigan. We find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II ALLEGED UNFAIR LABOR PRACTICES Commencing about 28 July 1986, the Respond- ent and its members went on strike against the Em- ployer. The strike ended on 12 September 1986, when the Respondent and the Employer agreed to a new collective-bargaining agreement. The collec- tive-bargaining agreement provided in pertinent part: The Union agrees that it is in the best interests of the Union and all employees that any bad feelings or disharmony in the plant generated by the strike be eliminated as soon as possible in the interest of efficient operations and an amiable working environment; and that no em- ployee should suffer discrimination, harass- ment, intimidation, or fines by virtue of choices made to support or not to support the strike; and that every employee is entitled to a working environment free from bitterness and hard feelings. The Union therefore agrees that no employee shall be discriminated against in any way be- cause of any lawful activity engaged in during or in connection with the strike. The Union further agrees that it shall not discriminate nor seek a penalty of any kind, including fines from any employee because of their choice of action with respect to resignation from the Union. The Union further agrees that any em- ployee who chooses to do so may rejoin the Union. 284 NLRB No. 44 386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The below-named employees, who were mem- bers of the Respondent, each participated in the strike and performed required picket line duty from about 28 July 1986 until each crossed the picket line and returned to work about the date set forth opposite each of their names: Larry Lemke 9/12/86 Paul Young 9/8/86 Brian Schippers 9/8/86 Larry Dean 9/9/86 Delbert Bressler 9/9/86 Since about 18 September 1986, and continuing to date, the Respondent, through its agent Eugene Benkert, has failed and refused to pay Larry Lemke, Paul Young, Brian Schippers, Larry Dean, and Delbert Bressler for strike benefits they had accrued from 28 July 1986 until each crossed the picket line, in order to fine or punish them for having crossed the picket line. We find that the Respondent violated Section 8(b)(1)(A) by refusing to pay the above-named em- ployees accrued strike benefits in order to fine or punish them for crossing the picket line, in contra- vention of the strike amnesty provision contained in the 12 September 1986 collective-bargaining agreement between the Respondent and the Em- ployer. 2 CONCLUSION OF LAW By failing and refusing to pay employees Larry Lemke, Paul Young, Brian Schippers, Larry Dean, and Delbert Bressler for strike benefits they had accrued from about 28 July 1986 until each crossed the picket line, in contravention of the strike am- nesty agreement contained in its collective-bargain- ing agreement with the Employer dated 12 Sep- tember 1986, the Respondent has engaged in unfair labor1 practices affecting commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(b)(1)(A) of the Act, we shall order it to cease and desist and to take certain affirmative action necessary to effectuate the policies of the Act. We shall order that the Respondent make whole employees Larry Lemke, Paul Young, Brian Schippers, Larry Dean, and Delbert Bressler by paying them the strike benefits they had accrued, with interest to be computed in the manner pre- scribed in New Horizons for the Retarded, 283 2 See Operating Engineers Local 39 (San Jose Hospital), 240 NLRB 1122 (1979). NLRB 1173 (1987). Additionally, we shall order that the Respondent post an appropriate notice.3 ORDER The National Labor Relations Board orders that the Respondent, Local 893, International Brother- hood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers and Helpers, AFL-CIO-CLC, Spring Lake, Michigan, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to pay employees for strike benefits they had accrued in order to fme or punish them for having crossed the picket line, in contravention of the strike amnesty provision con- tained in the Respondent's collective-bargaining agreement with the Employer dated 12 September 1986. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make whole Larry Lemke, Paul Young, Brian Schippers, Larry Dean, and Delbert Bressler by paying them the strike benefits which each had accrued from about 28 July 1986 until the date each of them crossed the picket line, with interest. (b) Post at its business office and meeting hall copies of the attached notice marked "Appendix."4 Copies of this notice, on forms provided by the Re- gional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places, including all places where no- tices to members are customarily posted. Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Sign and return to the Regional Director suf- ficient copies of the notice for posting by Stone Johnston Corporation, if willing, at all places where notices to employees are customarily posted. 3 As noted above, Benkert in his 2 March 1987 letter to the regional attorney asserted that Respondent Local 893 no longer existed We shall leave this matter to the compliance stage of this proceeding. The General Counsel has requested a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the Umted States court of appeals enforcing this Order. Under the cir- cumstances of this case, we fmd it unnecessary to include such a clause. Accordingly, we deny the General Counsel's request. 4 If 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 Nation- al 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." BOILERMAKERS LOCAL 893 (STONE JOHNSTON) 387 (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail and refuse to pay Larry Lemke, Paul Young, Brian Schippers, Larry Dean, and Delbert Bressler the strike benefits which each had accrued from about 28 July 1986 until the date each of them crossed the picket line, in contraven- tion of our contractual promise not to penalize any employee for actions taken during the strike. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole Larry Lemke, Paul Young, Brian Schippers, Larry Dean, and Delbert Bressler by paying to them strike benefits which each had accrued from about 28 July 1986 until the date each of them crossed the picket line, with in- terest. LOCAL 893, INTERNATIONAL BROTH- ERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORG- ERS AINTD HELPERS, AFL-CIO-CLC