Fuel Systems, Inc.

354 NLRB No. 44 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Fuel Systems, Inc. and International Brotherhood of Teamsters, Local Union No. 710. Case 13–CA– 44834 July 10, 2009 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER The General Counsel seeks summary judgment in this case pursuant to the terms of a settlement agreement. Upon a charge and amended charge filed by International Brotherhood of Teamsters, Local Union No. 710 (the Union) on July 25 and September 19, 2008, respectively, the General Counsel issued the original complaint on November 18, 2008, against Fuel Systems, Inc. (the Re- spondent), alleging that it had violated Section 8(a)(5), (3), and (1) of the Act. Subsequently, the Respondent and the Union entered into a settlement agreement, which was approved by the Acting Regional Director for Region 13 on April 6, 2009. Among other things, the settlement agreement required the Respondent to (1) post a notice to employ- ees, comply with its provisions, and provide the Region with the names and addresses of bargaining unit employ- ees for mailing of the notice by the Region; (2) offer Ignacio Marquez reinstatement to his former position or, if the position no longer exists because the Respondent has closed its facilities, place Marquez on a preferential rehiring list should the Respondent reopen its facility; and (3) pay Marquez backpay in the amount of $8400 on May 6, 2009. The settlement agreement also contained the following provision: [I]n a case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party, in- cluding but not limited to, failure to make timely in- stallment payments of moneys, and after 15 days notice from the Regional Director of the National Labor Rela- tions Board of such non-compliance without remedy by Charged Party, the Regional Director shall issue com- plaint in the instant case, (or, if the Regional Director has withdrawn the complaint pursuant to the terms of this Settlement Agreement, the Regional Director shall reissue the complaint previously filed in the instant case). Thereafter, the General Counsel may file a mo- tion for summary judgment with the Board on the alle- gations of the just issued complaint concerning the vio- lations alleged therein. Charged Party understands and agrees that the allegations of the aforementioned com- plaint may be deemed to be true by the Board, that it would not contest the validity of any such allegations, and the Board may enter findings, conclusions of law, and an order on the allegations of the aforementioned complaint. On receipt of said motion for summary judgment the Board shall issue an Order requiring the Charged Party to Show Cause why said Motion of the General Counsel should not be granted. The only issue that may be raised in response to the Board’s Order to Show Cause is whether the Charged Party defaulted upon the terms of this settlement agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the complaint to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party, on all issues raised by the pleadings. The Board may then issue an Order providing full rem- edy for the violations found as is customary to remedy such violations, including but not limited to provisions of this Settlement Agreement. The parties further agree that the Board Order and a U.S. Court of Appeals Judgment may be entered hereon ex parte. (Emphasis in original). By letter dated April 24, 2009, the compliance officer for Region 13 advised the Respondent that, based on its refusal to comply with the terms of the settlement agreement, the Respondent was in default. The letter stated that the Respondent had 15 days to cure its default by returning executed copies of the notice for distribution by the Region, paying Marquez backpay, expunging his records, and sending him written notification of the ex- pungement. The Respondent failed to comply. Accord- ingly, pursuant to the terms of the noncompliance provi- sions of the settlement agreement, on May 21, 2009, the Regional Director for Region 13 reissued the complaint. On May 26, 2009, the General Counsel filed a Motion for Summary Judgment with the Board. Thereafter, on June 4, 2009, 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, and the Charging Party filed a state- ment in support of the General Counsel’s motion. The allegations in the motion are therefore undisputed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Ruling on Motion for Summary Judgment1 According to the uncontroverted allegations in the Mo- tion for Summary Judgment, the Respondent has failed to comply with the terms of the settlement agreement by failing to remit the agreed-upon amount due employee Ignacio Marquez; failing to offer Marquez reinstatement to his job, or to inform him that his job no longer existed because the Respondent had closed its facilities and that he would be placed on a preferential rehiring list should the Respondent reopen its facility; and failing to return executed copies of the notice for distribution by the Re- gion. Consequently, pursuant to the noncompliance pro- visions of the settlement agreement set forth above, we find that all of the allegations in the reissued complaint are true.2 Accordingly, we grant the General Counsel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration, with an office and place of business located at 5852 W. 51st Street, Chicago, Illinois, has been engaged in the business of manufacturing fuel tanks. During the calendar year preceding issuance of the re- issued complaint, a representative period, the Respon- dent, in conducting its business operations described above, sold and shipped goods and materials valued in excess of $50,000 to points directly outside the State of Illinois from its Chicago facility. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union, International Brother- hood of Teamsters, Local Union No. 710, is a labor or- ganization within the meaning of Section 2(5) of the Act. 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, __ F.3d __, 2009 WL 1676116 (2d Cir. June 17, 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed __ U.S.L.W. __ (U.S. May 27, 2009) (No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No. 08-1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for re- hearing denied Nos. 08-1162, 08-1214 (July 1, 2009). 2 See U-Bee, Ltd., 315 NLRB 667 (1994). II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Bob Tipton Plant Manager Rick Playpool Vice President Isabel Astorga Supply Chain Manager The following employees of the Respondent (the unit) constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time employees working at its facility currently located at 5852 W. 51st Street, Chicago, Illinois; but excluding all other em- ployees, office clerical employees and guards, profes- sional employees and supervisors as defined in the Na- tional Labor Relations Act. On January 29, 2008, the Union was certified as the exclusive collective-bargaining representative of the unit. At all times since January 29, 2008, based on Section 9(a) of the Act, the Union has been and continues to be the exclusive collective-bargaining representative of the unit. About July 17, 2008, the Respondent terminated Igna- cio Marquez for alleged misconduct not covered by past practice or existing work rules. The Respondent engaged in the conduct described above because Marquez assisted the Union and engaged in protected concerted activities, and to discourage em- ployees from engaging in these activities. The Respondent engaged in the conduct described above without prior notice to the Union and without af- fording the Union an opportunity to bargain over this conduct. CONCLUSION OF LAW By the conduct described above, the Respondent has been discriminating in regard to the hire, or tenure, or terms and conditions of employment of its employees, thereby discouraging membership in a labor organiza- tion, in violation of Section 8(a)(3) and (1) of the Act; and has been failing and refusing to bargain collectively and in good faith with the exclusive collective- bargaining representative of its employees, in violation of Section 8(a)(5) and (1) of the Act. The Respondent’s unfair labor practices affect commerce within the mean- ing of Section 2(6) and (7) of the Act. FUEL SYSTEMS, INC. 3 REMEDY Having found that the Respondent has engaged in cer- tain 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. Specifically, having found that the Respondent has violated Section 8(a)(3) and (1) by terminating Ignacio Marquez on July 17, 2008, we shall order the Respondent to make Ignacio Marquez whole for any loss of earnings and other bene- fits suffered as a result of the Respondent’s unlawful actions against him. In this regard, the Respondent agreed in the settlement agreement to pay Marquez $8400 in backpay, with inter- est, to cover the period from his termination to the effec- tive date of the settlement agreement. As indicated above, the Respondent has not paid any backpay to Marquez, and therefore we shall order the Respondent to pay him the amount set forth in the settlement agreement. We find, however, that the backpay due Marquez should not be limited to this amount. As set forth above, the settlement agreement provided that, in the event of noncompliance, the Board could “issue an Order provid- ing full remedy for the violations found as is customary to remedy such violations, including but not limited to provisions of this Settlement Agreement.” Thus, under this language, it is appropriate to provide the “custom- ary” remedies of reinstatement, full backpay, expunge- ment of the Respondent’s personnel records, and notice posting.3 The additional backpay due Ignacio Marquez shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987).4 However, because we shall order the Respondent to provide the customary remedy of full backpay, the applicable backpay period will commence on April 6, 2009, the day the Acting Re- gional Director approved the settlement agreement. We find it necessary to impose this limitation to prevent an unintended double recovery for the period running from the date that Marquez was terminated to the effective date of the settlement agreement. We shall also order the Respondent to offer Marquez full reinstatement to his former job, or, if that job no 3 See L.J. Logistics, Inc., 339 NLRB 729, 730 (2003). 4 In the complaint, the General Counsel seeks compound interest computed on a quarterly basis for any backpay or other monetary awards. Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest. See, e.g., Glen Rock Ham, 352 NLRB 516, 516 fn. 1 (2008), citing Rogers Corp., 344 NLRB 504 (2005). longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privi- leges previously enjoyed. In addition, in the event that the job no longer exists because the Respondent has closed its facility, we shall order the Respondent to place Marquez on a preferential hiring list should the Respon- dent reopen its facility. Further, the Respondent shall be required to remove from its files any reference to the unlawful termination of Marquez, and to notify him in writing that this has been done and that the unlawful termination will not be used against him in any way. Finally, having found that the Respondent terminated Marquez for alleged misconduct not covered by past practice or existing work rules without notifying the Un- ion or affording it an opportunity to bargain, we shall order the Respondent, on request, to bargain with the Union concerning this decision and its effects. ORDER The National Labor Relations Board orders that the Respondent, Fuel Systems, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with International Brotherhood of Teamsters, Local Union No. 710, as the exclusive collective- bargaining representative of the employees in the unit below, by terminating employee Ignacio Marquez for alleged misconduct not covered by past practice or exist- ing work rules without prior notice to the Union and without affording the Union an opportunity to bargain with respect to this decision and its effects. The unit is: All regular full-time and regular part-time employees working at its facility currently located at 5852 W. 51st Street, Chicago, Illinois; but excluding all other em- ployees, office clerical employees and guards, profes- sional employees and supervisors as defined in the Na- tional Labor Relations Act. (b) Terminating or otherwise discriminating against any employee for engaging in protected concerted activi- ties or assisting International Brotherhood of Teamsters, Local Union No. 710, or any other labor organization, or to discourage employees from engaging in these activi- ties. (c) In any like or related 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 necessary to effectuate the policies of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 (a) On request, bargain collectively and in good faith with the Union as the exclusive collective-bargaining representative of the unit employees concerning the deci- sion to terminate Ignacio Marquez for alleged miscon- duct not covered by past practice or existing work rules, and the effects of this decision. (b) Make Ignacio Marquez whole for any loss of earn- ings and other benefits suffered as a result of the dis- crimination against him, with interest, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, offer Ignacio Marquez full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. Further, if that job no longer exists because the Respondent has closed its facility, place Ignacio Marquez upon a preferential hiring list should the Respondent reopen its facility. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful termination of Ignacio Marquez, and within 3 days thereafter, notify him in writing that this has been done and that the unlaw- ful termination will not be used against him in any way. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facility in Chicago, Illinois, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In addition, pursuant to the terms of the settlement agreement, the notice shall be posted in English and Spanish, and the Respondent shall provide signed copies of the notice in 5If 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.” English and Spanish for mailing by the National Labor Relations Board and a list of names and last known ad- dresses for all current and former employees employed by the Respondent in the bargaining unit represented by the Union at the Respondent’s facility located in Chi- cago, Illinois, at any time from July 17, 2008, to April 6, 2009. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. July 10, 2009 Wilma B. Liebman, Chairman Peter C. Schaumber, Member (SEAL) 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to bargain collectively and in good faith with International Brotherhood of Teamsters, Local Union No. 710, as the exclusive collec- tive-bargaining representative of the employees in the unit below, by terminating employees for alleged mis- conduct not covered by past practice or existing work rules without prior notice to the Union and without af- fording the Union an opportunity to bargain with respect to this decision and its effects. The unit is: FUEL SYSTEMS, INC. 5 All regular full-time and regular part-time employees working at our facility currently located at 5852 W. 51st Street, Chicago, Illinois; but excluding all other employees, office clerical employees and guards, pro- fessional employees and supervisors as defined in the National Labor Relations Act. WE WILL NOT terminate or otherwise discriminate against you for engaging in protected concerted activities or assisting International Brotherhood of Teamsters, Lo- cal Union No. 710, or any other labor organization, or to discourage you from engaging in these activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively and in good faith with the Union as the exclusive collective- bargaining representative of the unit employees concern- ing the decision to terminate Ignacio Marquez for alleged misconduct not covered by past practice or existing work rules, and the effects of this decision. WE WILL make Ignacio Marquez whole for any loss of earnings and other benefits resulting from his termina- tion, plus interest. WE WILL, within 14 days from the date of the Board’s Order, offer Ignacio Marquez full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges previously enjoyed. Further, if that job no longer exists because we have closed our facility, WE WILL place Ignacio Marquez on a preferential hiring list should we reopen our facility. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful termination of Ignacio Marquez, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the unlawful termination will not be used against him in any way. FUEL SYSTEMS, INC.