Binney'S Casting Co.

BINNEY'S CASTING CO 1095 Binney's Casting Company Jumbo Division and Local Union No. 499 of the International Asso-, ciation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 8-CA-18180 25 September 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT Upon a charge filed by the Union 8 April 1985,1 and amended 1 and 10 May, the General Counsel of the National Labor Relations Board issued a complaint 16 May against Binney's Casting Compa- ny Jumbo Division (the Company and/or the Re- spondent) alleging that it has violated Section 8(a)(5), (3), and (1) of the National Labor Relations Act. Although, properly served copies of the charge and complaint, the Company has failed to file an answer.2 On 20 April 1987 the General Counsel filed a Motion for Summary 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 Company 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 Summary 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 10 days of service, 3 "all of the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." The Respondent has stated it does not intend to file an answer to the complaint, and has failed to file a response to the Notice to Show Cause. Accordingly, in the ab- sence of good cause being shown for failure to file a timely answer, we grant the General Counsel's Motion for Summary Judgment insofar as the com- plaint alleges that the Respondent violated Section i All dates are in 1985 unless otherwise indicated 2 On 23 May the Respondent through its lawyer filed an answer to the complaint The Respondent's lawyer withdrew from the case 28 August 1986 On 20 November 1986, according to Exh.,E submitted by counsel for the General Counsel, the Respondent through its president, William R. Butler, withdrew its 23 May answer and stated it did not "intend to refile any answer with respect to the complaint " 3 Subsequent to the issuance of the complaint in this case, the Board revised Sec 102 20, effective 29 September 1986, to allow an answer to be filed within 14 days from service of the complaint 8(a)(3) and (1) of the Act by discharging employ- ees Ronald C. Clark, David Frank, Frankie H. Hunt, 'Robert A. Reynolds Sr., and Robert T. Staifer Jr. because they had become union mem- bers and engaged in union activities and/or_ because they had engaged in protected, concerted activities for their mutual aid and protection,4 and violated Section 8(a)(1) of the Act by promising employees to reinstate previously withdrawn fringe benefits if they abandoned union activities, by creating an im- pression of surveillance, by interrogating an em- ployee by asking why employees wanted a union and the Union's identity, by soliciting grievances from employees in an effort to dissuade them from supporting the Union, and by telling an employee to stop engaging in union organizing activities. The complaint additionally alleges that these unfair labor practices are so serious and substantial in character that the possibility of erasing their ef- fects and of conducting a fair election by the use of traditional remedies is slight, and the employees' sentiments regarding representation, having been expressed through authorization cards, would, on balance, be protected better by -issuance of a bar- gaining order than by traditional remedies alone. In determining whether a bargaining order is ap- propriate to remedy an employer's misconduct, the Board examines the nature and pervasiveness of the employer's unfair labor practices. NLRB v. Gissel Packing Co., 395 U.S. 575, 614-615 (1969). In weighing a violation's pervasiveness, relevant con- siderations include "the number of employees di- rectly affected by the violation, the size of the unit, the extent of dissemination among the work force, and the identity of the perpetrator of the unfair labor practice." Michigan Expediting Service, 282 NLRB 210, 211 (1986). Here, the complaint alleges the Respondent un- lawfully discharged five employees and, as noted above, violated Section 8(a)(1) on at least five sepa- rate occasions. The complaint further alleges that such unfair labor practices preclude the holding of a fair election and that a bargaining order is war- ranted. Although the unfair labor practices here are seri- ous in nature, the complaint does not allege suffi- cient facts to enable the Board to evaluate the per- vasiveness of the violations. For example, the com- plaint does not allege the size of the unit, the number of employees who were promised reinstate- ment of fringe benefits previously withdrawn if they abandoned their efforts to seek union repre- 4 The complaint alleges that Frank was dicharged on 28 March, that Clark, Hunt, and Staifer were discharged on 29 March, and that Reyn- olds was discharged on I April 285 NLRB No. 127 1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sentation, the number of employees subjected to an impression of surveillance, or the number of em- ployees whose grievances were unlawfully solicit- ed. The complaint also does not allege the extent of dissemination, if any, of these violations among the work force to those employees not directly af- fected by them. Accordingly, we deny the Motion for Summary Judgment insofar as it alleges that a bargaining order is appropriate. We shall remand the case for a hearing before an administrative law judge on the issue of whether a bargaining order is an appriopriate remedy under the circumstances of this case.5 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, an Ohio corporation, with an office and place of business in Toledo, Ohio, pro- duces casting molds for the glass industry, and an- nually purchases and receives at its Toldeo, Ohio facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Ohio. We find that the Company is an em- ployer 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 Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES On 28 March the Respondent discharged em- ployee David Frank. On 29 March the Respondent discharged employees Ronald C. Clark, Frankie H. Hunt, and Robert T. Staifer Jr. On 1 April the Re- spondent discharged Robert" A. Reynolds Sr: They were discharged because they had become union members and engaged in union activities and/or because they had engaged in protected, concerted activities for their mutual aid and protection. We find that by these acts, the Respondent has violated Section 8(a)(3) and (1) of the Act. On 26 February the Respondent, through its agent, William Butler, promised its employees to reinstate fringe benefits previously withdrawn if they abandoned, their efforts to seek union repre- sentation, created an impression of surveillance, in- terrogated its employees by asking an employee 5 The complaint also alleges that on 28 March 1985 the Union request- ed the Respondent to recognize and bargain with it as the exclusive rep- resentative of the Respondent's production and maintenance employees and that the Respondent has refused to do so, In the absence of an answer, we find these allegations to be admitted The complaint further alleges that by refusing to recognize or bargain with the Union, the Re- spondent violated Sec 8(a)(1) and (5) of the Act As this violation is al- leged as a predicate to the bargaining order remedy, we shall leave its disposition to the judge why the employee wanted a, union and the Union's identity, and unlawfully solicited grievances from employees in an effort to dissuade them from sup- porting the Union. On 19 or 20 March the Re- spondent, through its agent, John Padget, threat- ened employees by telling an employee to cease en- gaging in union organizational activities. We find that by these acts, the Respondent has violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW By discharging David Frank on 28 March, Ronald C. Clark, Frankie H. Hunt, and Robert T. Staifer Jr. on 29 March, and Robert A. Reynolds Sr. on 1 April, because they had become union members and engaged in union activities and/or because they had engaged in protected, concerted activities for their mutual aid and protection, the Respondent has engaged in unfair labor practices affecting commerce within the meaing of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. By promising to reinstate fringe benefits previ- ously withdrawn if employees abandoned their ef- forts to seek union representation,, creating an im- pression of surveillance, interrogating employees by asking an employee why the employee 'wanted a union and the Union's identity, unlawfully solicit- ing grievances in an effort to dissuade employees from supporting the Union, and threatening em- ployees by telling an employee to cease engaging in union organizational activities, the Respondent has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(1) and (3) of the Act, we shall order it to cease and 'desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to offer em- ployees Ronald C. Clark, David Frank, Frankie H. Hunt, Robert A. Reynolds Sr., and Robert T. Staifer Jr. immediate and full reinstatement to their former positions or, if those positions ' no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. We further shall order the Respondent to make the above-named employees whole for any loss of earnings and other benefits they may have suffered as a result of the discrimination against them, to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in BINNEY'S CASTINGS CO. New Horizons for the Retarded-6 We shall also order the Respondent to remove from its files any reference to the unlawful discharges and to notify the employees in writing that this has been done and that the unlawful discharges will not be used against them in any way. We shall further order the Respondent to post an appropriate notice to employees. As noted above, we shall also remand this case for hearing on the limited issue of wheth- er a bargaining order is an appropriate remedy under the circumstances of this case. ORDER The National Labor Relations Board orders that the Respondent, Binney's Casting Company Jumbo Division, Toledo, Ohio, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discharging employees because they had become union members and engaged in union ac- tivities and/or because they had engaged in pro- tected, concerted activities for their mutual aid and protection. (b) Promising employees to reinstate fringe bene- fits previously withdrawn if they abandoned their efforts to seek union representation. (c) Creating an impression of surveillance of em- ployees' union activities. (d) Interrogating employees by asking an em- ployee why the employee wanted a union and the Union's identity. (e) Unlawfully soliciting employee grievances in an effort to dissuade them from supporting the Union. (f) Threatening employees by telling an employ- ee that he should cease engaging in union organiza- tional activities. (g) 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 neces- sary to effectuate the policies of the Act. (a) Offer Ronald C. Clark, David Frank, Frankie H. Hunt, Robert A. Reynolds Sr., and Robert T. Staifer Jr. immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and make them whole for any loss 6 In accordance with our decision in New Horizons for t'e Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short -term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 1097 of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision.' (b) Remove from its files any reference to the unlawful discharges of the above employees, and notify them in writing that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on 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. (d) Post at its Toledo, Ohio facility copies of the attached notice marked "Appendix." ' 7 Copies of the notice, on forms provided by the Regional Di- rector for Region 8, after being signed by the Re- spondent'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 employees are customarily posted. Reason- able steps shall be -taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that this proceeding be remanded to the Regional Director for the purpose of holding a hearing before an administrative law judge on the issue of the appropriateness of a bar- gaining order as an additional remedy under the circumstances of this case and on the alleged 8(a)(1) and (5) violation based on the alleged ap- propriateness of a bargaining order. 7 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." APPENDIX NOTICE To EMPLOYEES 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. 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge you because you become union members and engage in union , activi- ties and/or ' because you engage in protected,, con- certed activities for your mutual aid and protec- tion. WE WILL NOT promise to reinstate your fringe benefits previously withdrawn if you abandon your efforts to seek union representation. WE WILL NOT create an impression of surveil- lance of your union activities. WE WILL NOT interrogate you about why 'you want a union and the Union's identity. WE WILL NOT solicit your grievances in an effort to dissuade you from supporting the Union. WE WILL NOT threaten you by telling you to cease engaging in union organizational activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act., WE WILL offer Ronald C . Clark, David Frank, Frankie H.' Hunt, Robert A. Reynolds Sr.,_ and Robert T. Staifer Jr. 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 any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings , plus interest. WE WILL notify each of them that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. BINNEY'S CASTING COMPANY JUMBO DIVISION