Cable-Masters, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1992

307 N.L.R.B. 871 (N.L.R.B. 1992)

871
307 NLRB No. 139
CABLE-MASTERS, INC.
Cable-Masters, Inc. and Local 1109, Communica-
tions Workers of America, AFL–CIO. Case 1–
CA–28114
June 11, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon a charge filed by Local 1109, Communica-
tions Workers of America, AFL–CIO (the Union)
March 19, 1991, and an amended charge filed May 6,
1991, the General Counsel of the National Labor Rela-
tions Board issued a complaint on May 15, 1991,
against Cable-Masters, Inc., the Respondent, alleging
that it has violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act. Although properly
served copies of the charge, the amended charge, and
the complaint, the Respondent has failed to file a prop-
er answer.
On April 9, 1992, the General Counsel filed a Mo-
tion for Summary Judgment. On April 14, 1992, 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 re-
sponse. The allegations in the motion are therefore un-
disputed.
The National Labor Relations Board has delegated
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 Regulations
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 allega-
tions in the complaint shall be deemed to be admitted
to be true and shall be so found by the Board.’’
Further, the undisputed allegations in the Motion for
Summary Judgment disclose that the Region, by letter
dated June 24, 1991, notified the Respondent that un-
less an answer was received by close of business July
10, 1991, a Motion for Summary Judgment would be
filed. By letter dated July 10, 1991, the Respondent re-
quested an extension of time to file an answer to the
complaint. By letter dated July 19, 1991, the Regional
Director granted the Respondent’s request to extend
the time to file an answer to September 3, 1991. No
answer having been received by September 3, 1991,
counsel for the General Counsel informed the Re-
spondent on September 26, 1991, by certified mail,
that if no answer was received by close of business
October 3, 1991, this motion would be filed. By a fac-
simile memorandum dated October 2, 1991, the Re-
spondent filed an answer to the complaint. On Novem-
ber 15, 1991, counsel for the General Counsel tele-
phonically advised the Respondent that an answer filed
by facsimile was not acceptable. No further answer
was filed.
The Respondent’s answer is improper under Section
102.114(e) of the Board’s Rules and Regulations,
which specifically provides that facsimile transmissions
of answers to complaints are not acceptable. Therefore,
the Respondent has not filed an answer acceptable
under the Board’s Rules and Regulations within 14
days from the service of the complaint or within the
extended time afforded it. Accordingly, in the absence
of good cause being shown for the failure to file a
proper answer, we grant the General Counsel’s Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation engaged in the instal-
lation of cable and wire, had an office and place of
business in Canton, Massachusetts, where it annually
purchased and received products, goods, and material
valued in excess of $50,000 directly from points out-
side the Commonwealth of Massachusetts. The Re-
spondent also annually provided services valued in ex-
cess of $50,000 for American Telephone and Tele-
graph, an enterprise directly engaged in interstate com-
merce, which has an office and place of business in
Mansfield, Massachusetts. We find that Respondent is
an employer engaged in commerce within the meaning
of Section 2(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. The Unit and the Union’s Representative
Status
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All full time and regular part time employees em-
ployed in the states of New York, New Jersey,
Connecticut, Massachusetts, New Hampshire,
Vermont and Maine excluding clerical employees
and supervisors as defined by the Act.
At all times material, the Union has been the des-
ignated exclusive collective-bargaining representative
of the employees in the unit and, until March 4, 1991,
the Union had been recognized as the representative by
the Respondent. Recognition was embodied in a col-
lective-bargaining agreement effective November 1,
1988, to October 31, 1991.
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At all times material, the Union, by virtue of Section
9(a) of the Act, has been, and is, the exclusive rep-
resentative of the employees in the unit for the pur-
poses of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
B. Unlawful Threats and Promises
The Respondent’s owner, Kevin Ciccone, and the
Respondent’s operations manager, Chris Vianni, are
supervisors of Respondent within the meaning of Sec-
tion 2(11) of the Act and agents of Respondent within
the meaning of Section 2(13).
About February 11, 1991, the Respondent, acting
through Ciccone, by telephone threatened its employ-
ees with layoff if they attempted to assert rights pre-
served by the collective-bargaining agreement, that it
would no longer abide by the collective-bargaining
agreement, and that it would shut down if the employ-
ees contacted the Union. About March 4, 1991, acting
through Ciccone, the Respondent impliedly promised
its employees increased wages if they would abandon
their rights to bargain collectively through the Union
and would become independent contractors.
About March 1, 1991, the Respondent, acting
through Vianni, told employees at Boston, Massachu-
setts jobsites that they could work for the Respondent
in the future only if they disavowed the Union and
worked as independent contractors. About March 11,
1991, through Vianni, the Respondent by telephone
told employees that their future employment with Re-
spondent would be conditional on their disavowing the
Union and working as independent contractors.
By the foregoing acts and conduct, the Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act, and the Respondent thereby has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
C. Layoff and Constructive Discharge
About March 1, 1991, and at times thereafter in
March 1991, the Respondent laid off its employees
Robert Morgan, Gerry O’Coin, Michael Banalewicz,
Ronald Tavares, and Edward Kelley and conditioned
their continued employment and/or reinstatement on
their abandoning their right to bargain collectively
through the Union and on their working as independent
contractors. About March 1, 1991, by the acts and con-
duct described, the Respondent caused the termination
of the named employees. The Respondent engaged in
this conduct because the named employees and other
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
these activities or other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection.
By the acts and conduct described above, the Re-
spondent has discriminated, and is discriminating, in
regard to the hire or tenure or terms or conditions of
employment of its employees, thereby discouraging
membership in a labor organization, and the Respond-
ent has thereby been engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the
Act.
C. Refusals to Bargain
About December 24 and 26, 1990, the Respondent
required its employees to take vacation time in lieu of
the unpaid layoff. About mid-February 1991, the Re-
spondent laid off its employees and required them to
use accrued vacation or sick time if they wished to be
paid during the layoff. Since about March 4, 1991, the
Respondent has failed to pay its employees wages and
benefits in accordance with the 1988–1991 collective-
bargaining agreement and has converted its employees
to independent contractors. Although the foregoing are
related to wages, hours, and other terms and conditions
of employment of the unit and are mandatory subjects
for the purposes of collective bargaining, the Respond-
ent engaged in the acts and conduct described without
prior notice to the Union and without having afforded
the Union an opportunity to negotiate and bargain as
the exclusive representative of the Respondent’s em-
ployees with respect to the acts and conduct and the
effects of the acts and conduct.
Since about November 1, 1990, the Respondent has
failed and refused to remit the fringe benefit amounts
that have become due under articles 18 and 19 of the
1988–1991 collective-bargaining agreement. Since
about November 1, 1990, the Respondent has failed
and refused to remit to the Union dues deducted from
employees’ wages as required by article 3 of the 1988–
1991 collective-bargaining agreement. Since about
March 1, 1991, the Respondent converted certain em-
ployees in the bargaining unit to independent contrac-
tors. Since about March 4, 1991, the Respondent has
failed and refused to process grievances pursuant to the
grievance-arbitration provision of the 1988–1991 col-
lective-bargaining agreement.
Since about February 1, 1991, by the foregoing acts
and conduct, the Respondent has failed and refused to
abide by and adhere to the terms of the 1988–1991
collective-bargaining agreement, thereby repudiating
that agreement.
Since about March 1, 1991, at diverse times in early
March 1991, the Respondent, through Kevin Ciccone
and Chris Vianni, at the Respondent’s Canton facility,
bypassed the Union and dealt directly with its employ-
873CABLE-MASTERS, INC.
ees by soliciting its employees to abandon their right
to bargain collectively through the Union and to be-
come independent contractors, and by impliedly prom-
ising them higher wages. On or about March 4, 1991,
the Respondent withdrew its recognition of the Union
as the exclusive collective-bargaining representative of
the employees in the unit.
By the acts and conduct described above, the Re-
spondent has failed and refused, and is failing and re-
fusing, to bargain collectively and in good faith with
the representative of its employees, and the Respond-
ent thereby has been engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 8(d) of the Act.
CONCLUSIONS OF LAW
1. By making threats and promises in an attempt to
coerce its employees to abandon their rights under the
collective-bargaining agreement and to become inde-
pendent contractors, the Respondent has interfered
with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act,
and the Respondent has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
2. By laying off its employees Robert Morgan,
Gerry O’Coin, Michael Banalewicz, Ronald Tavares,
and Edward Kelley, and by conditioning their contin-
ued employment and/or reinstatement on their aban-
doning their right to bargain collectively through the
Union and on their working as independent contrac-
tors, thereby causing the termination of the named em-
ployees, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1)
of the Act.
3. By unilaterally requiring its employees to take va-
cation or sick time during layoff; by failing to pay its
employees wages and benefits in accordance with its
collective-bargaining agreement and converting its em-
ployees to independent contractors; by failing and re-
fusing to remit the fringe benefit amounts due; by fail-
ing and refusing to remit to the Union dues deducted
from employees’ wages; by failing and refusing to
process grievances; by bypassing the Union and deal-
ing directly with the employees by soliciting them to
abandon the Union and become independent contrac-
tors, and by impliedly promising them higher wages;
by withdrawing recognition from the Union; and by
failing and refusing to abide by the terms of its collec-
tive-bargaining agreement thereby repudiating that
agreement, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 8(d) of the Act.
4. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
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 de-
signed to effectuate the policies of the Act.
We shall order the Respondent to offer immediate
and full reinstatement to employees Robert Morgan,
Gerry O’Coin, Michael Banalewicz, Ronald Tavares,
and Edward Kelley and to make them whole for any
losses resulting from their unlawful layoff and termi-
nation as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in 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 layoffs and termi-
nations and to advise the discriminatees in writing that
this has been done.
We shall order the Respondent to recognize and, on
request, bargain in good faith with the Union as the
collective-bargaining representative of the employees
in the unit regarding wages, hours, and other terms and
conditions of employment, and to process grievances
pursuant to the grievance procedure of the 1988–1991
collective-bargaining agreement.
We shall order the Respondent to restore all terms
and conditions of employment to the status quo as it
existed before the unlawful unilateral changes were
made and to make whole unit employees for any loss
of wages or benefits resulting from the Respondent’s
failure to adhere to the terms of its collective-bar-
gaining agreement, in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), with inter-
est as prescribed in New Horizons for the Retarded,
supra. The Respondent shall also reimburse its unit
employees for any expenses ensuing from the Re-
spondent’s unlawful failure to make the required ben-
efit payments as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981), with interest as prescribed in New
Horizons for the Retarded, supra. We shall also order
the Respondent to remit all fringe benefit amounts
which have become due. Any additional amounts due
the employee benefit funds shall be paid as prescribed
in Merryweather Optical Co., 240 NLRB 1213, 1216
fn. 7 (1979). The Respondent shall also forward to the
Union the union dues it deducted from employees’
wages, with interest as prescribed in New Horizons for
the Retarded, supra.
Because there is some question as to whether or not
Cable-Masters, Inc. still operates a facility in Canton,
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Massachusetts, we shall also provide for mail notices
to employees.
ORDER
The National Labor Relations Board orders that the
Respondent, Cable-Masters, Inc., Canton, Massachu-
setts, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with layoff if they at-
tempt to assert rights preserved by their collective-bar-
gaining agreement.
(b) Threatening employees that it will no longer
abide by the collective-bargaining agreement and that
it will shut down if employees contact the Union.
(c) Impliedly promising increased wages if the em-
ployees abandon their rights to bargain collectively
through the Union and become independent contrac-
tors.
(d) Telling employees that their future employment
with the Respondent will be conditional on their dis-
avowing the Union and working as independent con-
tractors.
(e) Laying off employees because of their protected
concerted activities and terminating them by condi-
tioning their continued employment and/or reinstate-
ment on their abandoning their right to bargain collec-
tively through the Union and on their working as inde-
pendent contractors.
(f) Failing and refusing to recognize and bargain
with Local 1109, Communications Workers of Amer-
ica, AFL–CIO as the exclusive collective-bargaining
representative of the employees in the unit set forth
below.
(g) Failing and refusing to bargain with the Union
by making unilateral changes requiring employees to
use vacation time or sick leave on layoff.
(h) Failing to pay employees wages and benefits in
accordance with the collective-bargaining agreement
and unilaterally converting employees to independent
contractors.
(i) Failing and refusing to remit the fringe benefit
amounts which have become due.
(j) Failing and refusing to remit to the Union dues
deducted from employees’ wages.
(k) Failing and refusing to process grievances.
(l) Failing and refusing to abide by and adhere to
the terms of the collective-bargaining agreement, there-
by repudiating that agreement.
(m) Bypassing the Union and dealing directly with
employees and soliciting employees to abandon their
right to bargain collectively through the Union by
impliedly promising them higher wages.
(n) Withdrawing recognition of the Union as the ex-
clusive collective-bargaining representative of the unit
employees.
(o) 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 necessary to
effectuate the policies of the Act.
(a) Offer Robert Morgan, Gerry O’Coin, Michael
Banalewicz, Ronald Tavares, and Edward Kelley im-
mediate and full reinstatement 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 make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of this
decision.
(b) Remove from its files any reference to the un-
lawful layoffs and terminations and notify the employ-
ees in writing that this has been done and that the lay-
offs and terminations will not be used against them in
any way.
(c) Recognize and, on request, bargain with Local
1109, Communications Workers of America, AFL–
CIO as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
All full time and regular part time employees em-
ployed in the states of New York, New Jersey,
Connecticut, Massachusetts, New Hampshire,
Vermont and Maine excluding clerical employees
and supervisors as defined by the Act.
(d) Give full force and effect to the terms and condi-
tions of employment provided in the collective-bar-
gaining agreement with the Union and make whole
unit employees for any losses of wages or benefits re-
sulting from the Respondent’s repudiation of that
agreement and its unlawful unilateral changes, in the
manner set forth in the remedy section of this decision.
(e) Pay wages and benefits in accordance with the
terms of the collective-bargaining agreement instead of
unilaterally converting employees to independent con-
tractors.
(f) Remit the fringe benefit amounts which have be-
come due and reimburse unit employees for any ex-
penses ensuing from the Respondent’s unlawful failure
to make the required payments, in the manner set forth
in the remedy section of this decision.
(g) Remit to the Union the union dues deducted
from employees’ wages, in the manner set forth in the
remedy section of this decision.
(h) Process grievances pursuant to the grievance
procedure of the collective-bargaining agreement.
(i) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts due under
the terms of this Order.
875CABLE-MASTERS, INC.
1 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
National 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.’’
(j) Post at its facility in Canton, Massachusetts, and
mail to the Union and to all unit employees a copy of
the attached notice marked ‘‘Appendix.’’1 Copies of
the notice, on forms provided by the Regional Director
for Region 1, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(k) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
WE WILL NOT threaten employees with layoff if they
attempt to assert rights preserved by their collective-
bargaining agreement.
WE WILL NOT threaten employees that we will no
longer abide by the collective-bargaining agreement
and that we will shut down if the employees contact
the Union.
WE WILL NOT impliedly promise employees in-
creased wages if they abandon their rights to bargain
collectively through the Union and become inde-
pendent contractors.
WE WILL NOT tell employees that their future em-
ployment with us is conditional on their disavowing
the Union and working as independent contractors.
WE WILL NOT lay off employees because of their
protected concerted activities and WE WILL NOT termi-
nate employees by conditioning their continued em-
ployment and/or reinstatement on their abandoning
their right to bargain collectively through the Union
and on their working as independent contractors.
WE WILL NOT fail and refuse to bargain with Local
1109, Communications Workers of America, AFL–
CIO as the exclusive collective-bargaining representa-
tive of our employees in the appropriate unit set forth
below regarding their terms and conditions of employ-
ment.
WE WILL NOT fail and refuse to bargain with the
Union by making unilateral changes requiring employ-
ees to use vacation time or sick leave on layoff.
WE WILL NOT fail to pay employees wages and ben-
efits in accordance with our collective-bargaining
agreement and unilaterally convert employees to inde-
pendent contractors.
WE WILL NOT fail and refuse to remit the fringe
benefit amounts which have become due.
WE WILL NOT fail and refuse to remit to the Union
dues deducted from employees’ wages.
WE WILL NOT fail and refuse to process grievances
pursuant to our collective-bargaining agreement.
WE WILL NOT fail and refuse to abide by and adhere
to the terms of our collective-bargaining agreement,
thereby repudiating that agreement.
WE WILL NOT bypass the Union and deal directly
with employees by soliciting employees to abandon
their right to bargain collectively through the Union
and become independent contractors by impliedly
promising them higher wages.
WE WILL NOT withdraw recognition of and refuse to
bargain with the Union as the exclusive collective-bar-
gaining representative of the unit employees.
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 offer Robert Morgan, Gerry O’Coin, Mi-
chael Banalewicz, Ronald Tavares, and Edward Kelley
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiv-
alent 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 remove from our files any reference to the
layoffs and terminations and WE WILL notify each of
these employees in writing that this has been done and
that the layoff and termination will not be used against
him in any way.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining represent-
ative of our employees in the following appropriate
unit:
All full time and regular part time employees em-
ployed in the states of New York, New Jersey,
Connecticut, Massachusetts, New Hampshire,
Vermont and Maine excluding clerical employees
and supervisors as defined by the Act.
WE WILL continue in full force and effect the terms
and conditions of employment provided in our collec-
tive-bargaining agreement with the Union and make
whole unit employees for any losses of wages or bene-
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fits resulting from our repudiation of that agreement
and our unlawful unilateral changes.
WE WILL pay employees wages and benefits in ac-
cordance with our collective-bargaining agreement in-
stead of unilaterally converting employees to inde-
pendent contractors.
WE WILL remit the fringe benefit amounts which
have become due, and WE WILL reimburse unit em-
ployees for any expenses ensuing from our unlawful
failure to make the required payments.
WE WILL remit to the Union dues deducted from
employees’ wages.
WE WILL, on request, process grievances in accord-
ance with grievance procedure of our collective-bar-
gaining agreement.
CABLE-MASTERS, INC.