Protection Sprinkler Systems, Inc.

1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Protection Sprinkler Systems, Inc. and Road Sprin- kler Fitters Local Union No. 699, United Asso- ciation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. Case 13-CA-27287 July 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY Upon a charge filed by the Union October 23, 1987, the General Counsel of the National Labor Relations Board issued a complaint December 4, 1987, against Protection Sprinkler Systems, Inc., the Respondent, alleging that it has violated Sec- tion 8(a)(1), (3), and (5) of the National Labor Re- lations Act. On August 4, 1988, the Regional Di- rector for Region 13 approved a settlement agree- ment in this proceeding that required the Respond- ent to pay certain amounts in quarterly installments to three employees named in the settlement agree- ment. The Respondent, however, thereafter failed to comply with the settlement agreement . The set- tlement agreement had indicated that "in case of non-compliance . . . [and] on motion for summary judgment by the General Counsel , the Answer of the Charged Party shall be considered withdrawn." On March 15 , 1989, the General Counsel filed a Motion for Summary Judgment, with exhibits at- tached. On March 17, 1989, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted . The Respondent filed no response. The allegations in the motion are therefore uncon- troverted. 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 the service of the complaint, unless good cause is shown. The complaint states that "an answer to [the] complaint [is due] within 14 days from the service thereof, and that, unless Respondent [files an answer], all of the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." Subse- quent to the complaint's issuance, the Respondent entered into a settlement agreement with the Union, with the approval of the Regional Director, in which it agreed to pay amounts of backpay, specified in the settlement agreement, to three dis- criminatees in quarterly installments over a 1-year period on June 1, 1988; September 1, 1988; January 1, 1989; and March 1, 1989. The settlement agree- ment also provided, in pertinent part, that: It is further agreed that in case of non-compli- ance with any of the terms of this Settlement Agreement by the [Respondent], including but not limited to, failure to make timely installment payment of monies as set forth in the Settlement Agreement, on motion for summary judgment by the General Counsel, the Answer of the [Re- spondent] shall be considered withdrawn. There- upon the Board shall issue an Order requiring the [Respondent] to Show Cause why said Motion of General Counsel should not be granted. The Board may then, without necessi- ty of trial, find all allegations of the Complaint to be true and make findings of fact and con- clusions of law consistent with those allega- tions, adverse to the [Respondent], on all issues raised by the pleadings. The Board may then issue an Order providing full remedy for the violations so found as is customary to remedy such violations and not limited to pro- visions of this Settlement Agreement; provid- ed, however that the [Respondent] does not waive its right to a hearing in a backpay pro- ceeding to liquidate its liability under the Board's Order . . . . [Emphasis added.] By letter dated January 31, 1989, Board Agent Bruce Standish requested the Respondent to comply with the terms of the settlement agreement by remitting payments to the discriminatees that had been due January 1, 1989. The letter further stated that if the Region did not receive these pay- ments by February 7, 1989, a collection action would commence against the Respondent. As of March 13, 1989, the date of the General Counsel's Motion for Summary Judgment, the Respondent had not remitted the payments that it owed to the discriminatees. In light of these circumstances, and consistent with the settlement agreement earlier signed by the Respondent, we consider any answer earlier filed by the Respondent to be withdrawn. The with- drawal of an answer necessarily has the same effect as a respondent's failure to file an answer.' Thus, we deem certain allegations of the complaint to be true. In particular, we grant the General Counsel's Motion for Summary Judgment insofar as the com- plaint alleges that the Respondent independently violated Section 8(a)(1) by making numerous i See, e.g., Newark Pipeline Co., 202 NLRB 234 (1973); Nickey Chevro- let Sales, 199 NLRB 411 (1972). 295 NLRB No. 122 PROTECTION SPRINKLER SYSTEMS 1073 threats to employees, and violated Section 8(a)(3) and (1) of the Act by discharging employees Ray Hamilton, Robert Faust, and Sam Casko.2 The complaint further alleges that these unfair labor practices are so serious and substantial in character that the possibility of erasing their effects and of conducting a fair election by the use of tra- ditional remedies is slight, and the employees' senti- ments regarding representation , having been ex- pressed through authorization cards, would , on bal- ance, be protected better by issuance of a bargain- ing order. In determining whether a bargaining order is appropriate to remedy an employer's mis- conduct, the Board examines the nature and perva- siveness 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, rel- evant considerations include "the number of em- ployees directly 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). In this case, the complaint alleges that the Re- spondent unlawfully discharged three employees and violated Section 8(a)(1) on eight separate occa- sions. The complaint further alleges in conclusion- ary terms that these unfair labor practices preclude the holding of a fair election and that a bargaining order is warranted . Although the unfair labor prac- tices here are serious in nature, the complaint does not allege sufficient facts to enable the Board to evaluate the pervasiveness of the violations. For example, the complaint does not allege the size of the unit, the number of employees who were sub- jected to the various unlawful threats the Respond- ent made, or the extent of the dissemination, if any, of the 8(a)(1) and (3) violations among the work force to those employees not directly affected by them. Accordingly, we deny the Motion for Sum- mary Judgment insofar as it alleges that a bargain- ing order is appropriate . 3 We shall remand the case for a hearing before an administrative law judge on the issue of whether a bargaining order is an appro- priate remedy under the circumstances of this case.4 2 See generally Orange Data, Inc, 274 NLRB 1018 (1985). 8 See Binney 's Casting Ca, 285 NLRB 1095 (1987); Michigan Expediting Service, supra. 4 The complaint also alleges that on October 20, 1987 , the Union re- quested the Respondent to recognize and bargain with it as the exclusive representative of the Respondent's sprinkler system installers and that the Respondent on that same date 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 and bargain with the Union, the Re- spondent further violated Sec. 8(a)(1) and (5) of the Act. Because this violation is alleged as a predicate to the bargaining order remedy, we shall leave its disposition to the judge. On the entire record, the Board makes the fol- lowing findings. I. JURISDICTION The Respondent, a corporation with an office and place of business in Naperville, Illinois, has been engaged in the design and installation of com- mercial sprinkler systems. During the calendar or fiscal year preceding the issuance of the complaint, the Respondent, in the course and conduct of its business operations, purchased and received at its Naperville, Illinois facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Illinois. We find that the Respondent 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 the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Unlawful Threats About October 21, 1987, the Respondent, acting through its owner and president, Michael Alexan- der, threatened its employees that it would be futile for them to join a union; their pay would be cut and they might be laid off if they joined a union; they would not be allowed to work without first renouncing the Union in writing; they would lose benefits if they joined a union; the Naperville facili- ty would close if they joined the Union; and they would be discharged if they joined the Union. About October 21, 1987, the Respondent, acting through its vice president, Dominic Vittorio, a stat- utory supervisor, threatened employees that they could not return to their jobs without first re- nouncing the Union and impliedly threatened em- ployees with the loss of work if they joined or sup- ported the Union. By engaging in this conduct, the Respondent has interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We therefore conclude that the Respondent thereby has violated Section 8(a)(1) of the Act. B. Unlawful Discrimination About October 21, 1987, the Respondent dis- charged its employees Ray Hamilton , Robert Faust, and Sam Casko. The Respondent engaged in this conduct because the named employees joined, supported, or assisted the Union and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and in order to discourage employees from engaging in such activities or other concerted activities for the purpose of collective bargaining or other mutual 1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD aid or protection. By engaging in this conduct, the Respondent has discriminated in regard to the hire or tenure or terms or conditions of employment of its employees, thereby discouraging membership in a labor organization. Accordingly, we find that the Respondent has violated Section 8 (a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By threatening or impliedly threatening em- ployees that it would be futile for them to join a union, that their pay would be cut and they might be laid off if they joined a union, that they would not be allowed to work or return to their jobs without first renouncing the Union in writing, that they would lose work or benefits if they joined the Union, that the facility would close if they joined the Union, and that they would be discharged if they joined the Union, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By discharging employees Ray Hamilton, Robert Faust, and Sam Casko , the Respondent has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully discharged employees Ray Hamilton, Robert Faust, and Sam Casko, we shall order the Respondent to remove from its files any references to the dis- charges and to notify these employees in writing that this has been done and that these unlawful ac- tions will not be used against the employees in any way. We shall also order the Respondent to offer Hamilton, Faust, and Casko immediate and full re- instatement 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 to make them whole for any loss of earnings they may have suffered as a result of the Respondent's unlawful conduct . Backpay shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be com- puted in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). We shall order the Respondent to post an appropriate notice to employees. Lastly, as noted above, we shall also remand this case for a hearing on the limited issue of whether a bargaining order is an appropriate remedy under the circumstances of this case.5 ORDER The National Labor Relations Board orders that the Respondent, Protection Sprinkler Systems, Inc., Naperville, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees that it would be futile for them to join a union. (b) Threatening employees that their pay would be cut and they might be laid off if they joined a union. (c) Threatening employees that they would not be allowed to work without first renouncing the Union in writing. (d) Threatening employees that they would lose job benefits if they joined or supported a union. (e) Threatening employees that the facility would close if they joined the Union. (f) Threatening employees that they would be discharged if they joined the Union. (g) Threatening employees that they could not return to their jobs without first renouncing the Union. (h) Threatening employees with the loss of work if they joined or supported the Union. (i) Discharging employees because they had joined, supported, or assisted the Union and/or be- cause they had engaged in protected concerted ac- tivities for the purpose of collective bargaining or other mutual aid and protection. (j) In any like or related manner interfering with, 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) Offer Ray Hamilton, Robert Faust, and Sam Casko 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, with inter- est, for any loss of earnings and other benefits suf- fered 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 references to the unlawful discharges of the above employees, and S The General Counsel requests that the Order include a visitatorial clause. We shall not rule on this request now but we leave it to the judge to assess initially under the analysis set out in Cherokee Marine Terminal, 287 NLRB 1080 (1988). PROTECTION SPRINKLER SYSTEMS 1075 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 Naperville , Illinois facility copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Re- gional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable 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. 6 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten employees that it would be futile for them to join a union. WE WILL NOT threaten employees that their pay would be cut and they might be laid off if they joined a union. WE WILL NOT threaten employees that they would not be allowed to work without first re- nouncing the Union in writing. WE WILL NOT threaten employees that they would lose job benefits if they joined or supported a union. WE WILL NOT threaten employees that the facili- ty would close if they joined the Union. WE WILL NOT threaten employees that they would be discharged if they joined the Union. WE WILL NOT threaten employees that they could not return to their jobs without first re- nouncing the Union. WE WILL NOT threaten employees with the loss of work if they joined or supported the Union. WE WILL NOT discharge employees because they joined, supported, or assisted the Union and/or be- cause they had engaged in protected concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer Ray Hamilton, Robert Faust, and Sam Casko immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits they may have suffered as a result of our discrimi- nation against them, with interest. WE WILL remove from our files any references to the unlawful discharges of Hamilton, Faust, and Casko and notify them in writing that this has been done and that our unlawful actions will not be used against them in any way. PROTECTION SPRINKLER SYSTEMS, INC.