Control And Electrical System Specialists, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 1990

299 N.L.R.B. 642 (N.L.R.B. 1990)

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being withdrawn "for the purpose of accommoda-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