Control And Electrical System Specialists, Inc.

642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Control and Electrical System Specialists, Inc. and Local Union 342, International Brotherhood of Electrical Workers, AFL-CIO. Case 11-CA- 13386 August 29, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT Upon a charge filed by the Union on June 29, 1989, the General Counsel of the National Labor Relations Board issued a complaint against Control and Electrical System Specialists, Inc, the Re- spondent, allegmg that it has violated Section 8(a)(3) and (1) of the National Labor Relations Act On August 29, 1989, the Respondent filed an answer to the complaint On January 10, 1990, the Respondent withdrew its answer On April 24, 1990, an amended complaint was issued On May 4, 1990, the Respondent filed an answer to the amended complaint On May 10, 1990, the Respondent withdrew its answer to the amended complaint On May 24, 1990, the General Counsel filed a Motion for Summary Judgment On May 31, 1990, 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 Respondent 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 Rulmg on Motion for Summary Judgment Section 102 20 of the Board's Rules and Regula- tions provides that the allegations m 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 amended com- plaint states that unless an answer is filed within 14 days of service, "all 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 Summary Judgment disclose that the Respond- ent withdrew its answers to the complaint and to the amended complaint The Respondent, by letter dated May 10, 1990, notified the General Counsel that the answer to the amended complaint was being withdrawn "for the purpose of accommoda- non and to preclude a hearing against a company that is defunct "' The Respondent's withdrawal of its answers has the same effect as the failure to file an answer 2 In the absence of good cause bemg shown for the fail- ure to file a timely answer to the complaint or to the amended complaint, we grant the General Counsel's Motion for Summary Judgment insofar as the amended complaint alleges that the Re- spondent violated Section 8(a)(3) and (1) of the Act by dischargmg employees Darrell Cockerham, Rodney Booe, Michael Bennett, Mark Calcutt, and John Hutchens, and violated Section 8(a)(1) of the Act by interrogating its employees concemmg their umon membership, activities, and sympathies, threatening its employees that it would terminate an employee and that this would result in the end of union activities among the employees, threaten- ing its employees by stating that employees who were suspected of engaging in union activities had been discharged, and maintaining a rule prohibiting employees from solicitation in nonwork areas during nonwork time The complaint also 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 traditional remedies is slight, and that the employees' senti- ments regardmg representation, havmg been ex- pressed through authorization cards, would, on bal- ance, be protected better by the issuance of a bar- gaining order than by traditional remedies alone In determining whether a bargaining order is ap- propnate to remedy an employer's misconduct, the Board examines the nature and pervasiveness of the employer's unfair labor practices NLRB v Gissel Packing Go, 395 US 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 that the Respondent unlawfully discharged five employees and, as noted above, violated Section 8(a)(1) on at least four sep- arate occasions The amended complaint further al- leges that these unfair labor practices make the 1 In its letter, the Respondent stated that it had "ceased operations on October 31, 1989, and has not resumed [operations] and has, in fact, filed Articles of Dissolution with the North Carolina Secretary of State" 2 See Michigan Bridge, 292 NLRB No 91 (Feb 7, 1989) (not reported in Board volumes), Carter Electric, 286 NLRB No 129 (Nov 30, 1987) (not reported in Board volumes), and Maishn Transport, 274 NLRB 529 (1985) 299 NLRB No 92 CONTROL & ELECTRICAL SYSTEM SPECIALISTS 643 possibility of holding a fair election slight and that a bargaining order is warranted Although the unfair labor practices here are seri- ous, we find that the amended complaint does not allege sufficient facts to enable the Board to evalu- ate the pervasiveness of the violations For exam- ple, the amended complaint does not allege the size of the unit, the number of employees who were threatened, or the number of employees who were interrogated The amended complaint does not pro- vide any information concerning the Respondent's no-solicitation rule The complaint also does not allege the extent of dissemination, if any, of these violations among the work force to those employ- ees not directly affected 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 to the Regional Director for further action on the issue of whether a bargaining order is an appropriate remedy under the circum- stances of this case 3 On the entire record, the Board makes the fol- lowing findings I JURISDICTION The Respondent is a North Carolina corporation engaged in electrical contracting at its facility in Kernersville, North Carolina During the 12 months preceding the issuance of the amended complaint it purchased and received at its facility, and related jobsites, products, goods, and materials valued m excess of $50,000 from other enterprises, including Graybar Electric Company Graybar located within the State of North Carolina and re- ceived the products, goods, and materials directly from points outside the State of North Carolina We find that the Respondent is an employer en- gaged 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 A Unlawful Threats Since December 29, 1988, and continuously thereafter, the Respondent through its agents and supervisors has engaged in the following acts and conduct 1 On April 10, 1989, the Respondent interrogat- ed its employees concerning their union member- ship, activities, and sympathies 2 On May 4, 1989, the Respondent threatened its employees that the termination of an employee 'Protection Sprinkler Systems, 295 NLRB 1072 (1989), Binney's Casting Ca, 285 NLRB 1095 (1987), and Michigan Expediting Service, supra would result in the end of union activities among the employees 3 On May 10, 1989, the Respondent threatened its employees by stating that employees suspected of engaging in union activities had been dis- charged 4 The Respondent maintained a rule prohibiting employees from solicitation in nonwork areas during nonwork time By engaging in this conduct, the Respondent has interfered with, restrained, and coerced its employ- ees in the exercise of rights guaranteed in section 7 of the Act We find this conduct violated Section 8(a)(1) of the Act B Unlawful Discrimination On May 8, 1989, the Respondent discharged and thereafter failed and refused to reinstate employees Darrell Cockerham, Rodney Booe, and Michael Bennett On May 9, 1989, the Respondent dis- charged and thereafter failed and refused to rein- state employees Mark Calcutt and John Hutchens The Respondent engaged in this conduct because the 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 em- ployees from engaging in such union activities or other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection We find this conduct violated Section 8(a)(3) and (1) of the Act CONCLUSIONS OF LAW 1 By interrogating its employees concerning their union membership, activities, and sympathies, threatening its employees that the termination of an employee would result in the end of union activi- ties among the employees, threatening its employ- ees by stating that employees who were suspected of engaging in union activities had been dis- charged, and maintaining a rule prohibiting em- ployees from solicitation in nonwork areas during nonwork time, 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 and thereafter failing and re- fusing to reinstate employees Darrell Cockerham, Rodney Booe, and Michael Bennett on May 8, 1989, and discharging and thereafter failing and re- fusing to reinstate employees Mark Calcutt and John Hutchens on May 9, 1989, the Respondent has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(3) and (I) and Section 2(6) and (7) of the Act 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 Darrell Cockerham, Rodney Booe, Michael Bennett, Mark Calcutt, and John Hutchens, we shall order the Respondent to offer them 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 of earnmgs and other benefits 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 prescnbed New Horizons for the Retarded, 283 NLRB 1173 (1987) We shall also order the Respondent to remove from its files any reference to the unlawful dis- charges and notify the employees in wntmg that this has been done and that the discharges will not be used against them in any way We shall further order the Respondent to mail an appropriate notice to employees 4 As noted above, we shall also remand this case for further appropri- ate action on the limited issue of whether a bar- gaining order is an appropriate remedy under the circumstances of this case ORDER The National Labor Relations Board orders that the Respondent, Control and Electrical System Specialists, Inc , Kernersville, North Carolina, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Interrogating its employees concerning their union membership, activities, and sympathies (b) Threatemng its employees by stating that the termination of an employee would result in the end of union activities among the employees (c) Threatening its employees by stating that em- ployees who were suspected of engaging in union activities had been discharged 4 In view of the Respondent's claim that operations have ceased, we shall provide for the mailing of notices to unit employees See Michigan Bridge, supra, and Carter Electric, supra We recognize that if the Respondent has ceased operations, this may limit the full application of the prescribed remedy We shall leave to compliance the issue of the effect the Respondent's closure of Its facility may have on our remedial order See Indian Mining, 287 NLRB 114 (1987), and Capitol Tire Systems, 288 NLRB 677 (1988) (d) Maintaining a rule prohibiting employees from solicitation in nonwork areas during nonwork time (e) Discharging employees and thereafter failing and refusing to reinstate them because they joined, supported, or assisted the Union and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the nghts 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 Darrell Cockerham, Rodney Booe, Mi- chael Bennett, Mark Calcutt, and John Hutchens immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other nghts or privileges previous- ly enjoyed, and make them whole for any loss of eammgs 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 and notify the employees in writing that this has been done and that the dis- charges 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 Kemersville, North Carolina facili- ty, copies of the attached notice marked "Appen- dix "5 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 6 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) Mail a copy of the attached notice marked "Appendix" to all employees who were employed by the Respondent immediately prior to the Re- spondent's alleged cessation of operations Copies '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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of The United States Court of Appeals Enforcing an Order of the National Labor Relations Board" CONTROL & ELECTRICAL SYSTEM SPECIALISTS 645 of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent's authorized representative, shall be mailed immediately upon receipt (f) 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 is remanded to the Regional Director If, in his opin- ion, a hearing will effectuate the purpose of the Act, he is to schedule a hearmg before an adminis- trative law judge on the issue of the appropriate- ness of a bargaining order as an additional remedy under the circumstances of this case 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 WE WILL NOT interrogate you concerning your union membership, activities, and sympathies WE WILL NOT threaten you by stating that the termination of an employee would result in the end of union activities among the employees WE WILL NOT threaten you by stating that em- ployees suspected of engaging in union activities have been discharged WE WILL NOT maintain a rule prohibiting you from soliciting in nonwork areas during nonwork time WE WILL NOT discharge you because you became union members and engaged in union ac- tivities and/or because you engaged in protected concerted activities for your mutual aid and protec- tion 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 Darrell Cockerham, Rodney Booe, Michael Bennett, Mark Calcutt, and John Hutchens 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 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 Darrell Cockerhatn, Rodney Booe, Michael Bennett, Mark Calcutt, and John Hutchens that we have removed from our files any reference to their discharges and that we will not use the discharges against them m any way CONTROL AND ELECTRICAL SYSTEM SPECIALISTS, INC