E.R. Industries

National Labor Relations Board - Board Decisions

Mar 15, 1996

320 N.L.R.B. 935 (N.L.R.B. 1996)

935
320 NLRB No. 103
E. R. INDUSTRIES
1 The partial motion to strike the Respondent’s response is denied.
We also find it unnecessary to pass on the General Counsel’s motion
to strike the Respondent’s answer because we have found, for the
reasons set forth below, that no timely answer was filed.
2 Former Sec. 102.114(e), which governed the filing of documents
at all times relevant to this proceeding, specifically provided that
facsimile transmission is not an acceptable means of filing an answer
to a complaint. On November 8, 1995, the Board revised its Rules
and Regulations pertaining to filing and service of certain docu-
ments. Pursuant to these changes, former Sec. 102.114(e) was re-
codified as Sec. 102.114(g). The revised rules, however, retain the
prohibition on facsimile transmission of answers to complaints set
forth in former Sec. 102.114(e). We note in any event that the re-
vised rules are not applicable to this case.
3 In these circumstances, we need not resolve the issue whether the
document was, in fact, sent by facsimile on the date in question.
E. R. Industries, Inc. and International Union of
United Automobile Workers, AFL–CIO. Cases
3–CA–19196, 3–CA–19218, 3–CA–19284, and 3–
CA–19487
March 15, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon charges filed by the International Union of
United Automobile Workers, the Union, on February
24, March 6, April 6, and July 13, 1995, the General
Counsel of the National Labor Relations Board issued
an order consolidating cases, consolidated complaint,
and notice of hearing on August 31, 1995, against
E. R. Industries, Inc., the Respondent, alleging that it
had violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act. Although properly served
copies of the charges and the consolidated complaint,
the Respondent has failed to file a proper answer.
On October 6, 1995, the General Counsel filed a
Motion for Summary Judgment. On October 11, 1995,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed a re-
sponse asserting that the General Counsel’s motion
should be denied, and the General Counsel subse-
quently filed a motion to partially strike the Respond-
ent’s response to the Notice to Show Cause, to strike
the Respondent’s answer, and a statement in opposition
to the Respondent’s response.1
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 the allegations
in the consolidated complaint shall be considered to be
admitted and shall be so found by the Board.’’ Section
102.20 also states that the answer should specifically
admit, deny, or explain each of the facts alleged in the
complaint unless the respondent is without knowledge,
in which case it shall so state.
The undisputed allegations in the Motion for Sum-
mary Judgment disclose that counsel for the General
Counsel, by letter dated September 15, 1995, notified
the Respondent that unless an answer was received by
September 22, 1995, a Motion for Summary Judgment
would be filed. According to the Respondent, it sub-
mitted to the Region on September 20, 1995, a fac-
simile letter denying all charges against the Respond-
ent. The General Counsel’s opposition statement as-
serts that no such facsimile document was received by
the Region and notes that, in any event, the Board’s
Rules and Regulations provide that facsimile trans-
missions of answers are not acceptable.2
Even assuming arguendo that the Respondent’s letter
dated September 20, 1995, was in fact transmitted to
the Region by facsimile on September 20 as the Re-
spondent avers, that document was improper as a fac-
simile answer to the complaint under former Section
102.114(e) of the Board’s Rules and Regulations.
Therefore, the Respondent has not filed an answer ac-
ceptable 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 an acceptable answer, we grant the General
Counsel’s Motion for Summary Judgment. Cable-Mas-
ters, Inc., 307 NLRB 871 (1992).3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation engaged in the re-
manufacture of automotive parts, annually purchases
and receives at its Tonawanda, New York facility
goods and materials valued in excess of $50,000 di-
rectly from points located outside the State of New
York. We find that the Respondent is an employer en-
gaged 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.
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 All dates hereafter are in 1995.
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 production and
maintenance employees employed by the Re-
spondent at its Tonawanda, New York facility;
excluding all office clerical and professional em-
ployees, guards and supervisors as defined in the
Act, and all other employees.
On March 22, 1995,4 the Board conducted an elec-
tion in the unit set forth above and issued a tally of
ballots in which challenged ballots were determinative.
On July 6, pursuant to a stipulation by the parties ap-
proved by the Regional Director for Region 3 on June
23, the determinative challenged ballots were opened
and counted and a revised tally of ballots was issued.
On July 17, pursuant to the revised tally, the Union
was certified as the exclusive collective-bargaining rep-
resentative of the employees in the unit. At all times
material since March 22, the Union has been the ex-
clusive representative of the unit employees pursuant
to Section 9(a) of the Act for purposes of collective
bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment.
B. Unlawful Threats and Promises
The Respondent’s chief executive officer, David
Bangert, its president, Scott Bangert, and its plant
manager, Terry Battaglia, are supervisors of the Re-
spondent within the meaning of Section 2(11) of the
Act and agents of the Respondent for purposes of Sec-
tion 2(13).
About February 13, the Respondent, acting by David
and Scott Bangert, informed an employee that it would
be futile for employees to select the Union as their
bargaining representative by stating that the Respond-
ent would not recognize the Union.
About February 13, the Respondent, by David
Bangert, interrogated an employee about the employ-
ee’s and other employees’ union membership, activi-
ties, and sympathies and created the impression of sur-
veillance of employees’ union activities; solicited em-
ployees’ grievances and impliedly promised to rectify
those grievances if employees refrained from union or-
ganizational activities; and promised an employee that
the Respondent would give employees increased bene-
fits and improved terms and conditions of employment
if they refrained from union organizational activities.
About February 15, the Respondent, by David
Bangert, interrogated an employee about the employ-
ee’s union membership activities and sympathies and
the union membership activities and sympathies of
other employees and created the impression of surveil-
lance of employees’ union activities; and solicited an
employee to conduct a meeting with other employees
in order to ‘‘bad talk’’ the Union and persuade other
employees to refrain from union activities.
About February 17, the Respondent, by David
Bangert, solicited employees to form and participate in
an employee committee and impliedly promised to rec-
tify employee grievances through the committee if em-
ployees refrained from union organizational activities;
the Respondent, by Scott Bangert, informed its em-
ployees that it would be futile to select the Union as
their representative by stating that the Respondent
would not recognize the Union, threatened employees
with plant closure, discharge, layoff, and permanent re-
placement of all employees if they selected the Union
as their representative, and threatened an employee
with unspecified reprisals while directing the employee
to persuade other employees to refrain from engaging
in union activities.
About February 20, the Respondent, by Scott
Bangert, directed an employee to distribute to other
employees antiunion documents in which the employ-
ees would indicate their support for the Union or for
the Respondent, and directed the employee to provide
Scott Bangert with the results of the poll; the Respond-
ent, by David Bangert, threatened an employee with
plant closure, discharge, and permanent replacement if
the employees selected the Union as their representa-
tive; and informed an employee that it would be futile
for employees to select the Union as their bargaining
representative by stating that the Respondent would
not negotiate with the Union and/or would give a final
offer lower than current employees’ wages.
Since about February 20, the Respondent has re-
scinded and/or altered employees’ telephone privileges
in order to discourage employees from engaging in
union activity.
About June 1995, the Respondent, by David Ban-
gert, interrogated an employee about the employee’s
union activities, membership, and sympathies.
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 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.
C. Termination of Employee Harris
On about February 22, the Respondent terminated its
employee Michael Harris. The Respondent engaged in
937E. R. INDUSTRIES
this conduct because Harris formed, joined, or assisted
the Union and engaged in concerted activities, and to
discourage employees from engaging in these activi-
ties.
By the acts and conduct described above, the Re-
spondent has discriminated, and is discriminating, in
regard to hire or tenure or terms or conditions of em-
ployment of its employees, thereby discouraging mem-
bership in a labor organization, and the Respondent
has thereby engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
D. Refusals to Bargain
Since about March 24, the Respondent has failed
and refused to recognize and bargain with the Union
as the exclusive collective-bargaining representative of
employees in the unit.
About March 24, the Respondent laid off employees
Thomas Guyatt and William Englert. About April 12,
the Respondent laid off employee Jason Williams.
About May 17, the Respondent laid off employee John
Kratz. These matters relate to wages, hours, and other
terms and conditions of employment of the unit and
are mandatory subjects for the purposes of collective
bargaining. The Respondent engaged in the conduct
described above without prior notice to the Union and
without affording the Union an opportunity to bargain
with the Respondent concerning this conduct and its
effects.
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 engaged in unfair labor practices with-
in the meaning of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By making threats of futility of representation,
plant closure, layoff, discharge, permanent replace-
ment, and unspecified reprisal, by soliciting grievances
and promising benefits if employees refrain from union
activity, interrogating employees and creating the im-
pression of surveillance of employees’ union activities,
by soliciting employees to oppose the Union and to
persuade others to refrain from engaging in union ac-
tivities, by soliciting employees to form and participate
in an employee committee and promising to rectify
grievances through the committee if employees refrain
from union activity, by directing employees to poll
other employees concerning their union support and to
report the results to the Respondent, and by rescinding
and/or altering employee telephone privileges in order
to discourage union activity, the Respondent has inter-
fered with, restrained, and coerced employees in the
exercise of the rights guaranteed by 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 terminating employee Michael Harris because
of his union activities and to discourage other employ-
ees from engaging in union and protected concerted
activities, the Respondent has violated Section 8(a)(3)
and (1) of the Act.
3. By failing and refusing to bargain with the Union
as the exclusive collective-bargaining representative of
its employees in the appropriate unit since March 24,
1995, and by laying off employees Thomas Guyatt,
William Englert, Jason Williams, and John Kratz,
without prior notice to the Union and without afford-
ing the Union an opportunity to bargain with respect
to these layoffs and their effects, the Respondent has
violated Section 8(a)(5) and (1) 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.
Specifically, having found that the Respondent has
violated Section 8(a)(3) and (1) by discharging em-
ployee Michael Harris, we shall order the Respondent
to offer him immediate and full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously en-
joyed, and to make him whole for any loss of earnings
and other benefits suffered as a result of the discrimi-
nation against him.
Likewise, having found that the Respondent violated
Section 8(a)(5) and (1) by laying off employees Thom-
as Guyatt, William Englert, Jason Williams, and John
Kratz, without prior notice to the Union and without
affording the Union an opportunity to bargain with re-
spect to these layoffs and their effects, we shall order
the Respondent to offer them immediate and full rein-
statement to their former jobs or, if those jobs no
longer exists, to a substantially equivalent position,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and to make them
whole for any loss of earnings and other benefits suf-
fered as a result of the unlawful layoffs.
Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). The Respondent shall also be
required to remove from its files any and all references
to the unlawful discharges and layoffs, and to notify
the employees in writing that this has been done.
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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.’’
We shall also order the Respondent to reinstate its
former telephone use policies.
ORDER
The National Labor Relations Board orders that the
Respondent, E. R. Industries, Inc., Tonawanda, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Making threats of futility of representation, plant
closure, layoff, discharge, permanent replacement, and
other unspecified reprisals.
(b) Soliciting grievances and promising benefits if
employees refrain from union activities.
(c) Coercively interrogating any employee about
union activities or sentiments.
(d) Creating the impression of surveillance of em-
ployees’ union activities.
(e) Soliciting employees to oppose the Union and to
persuade others to refrain from engaging in union ac-
tivities.
(f) Soliciting employees to form and participate in
an employee committee and promising to rectify griev-
ances through the committee if employees refrain from
union activity.
(g) Directing employees to poll other employees
concerning their union support and to report the results
to it.
(h) Rescinding and/or altering employee telephone
privileges in order to discourage union activity.
(i) Discharging or otherwise discriminating against
any employee for supporting International Union of
United Automobile Workers, AFL–CIO or any other
labor organization.
(j) Refusing to bargain with International Union of
United Automobile Workers, AFL–CIO as the exclu-
sive bargaining representative of the employees in the
bargaining unit.
(k) Laying off employees in the bargaining unit or
making other changes in the rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment of unit employees without prior notice to the
Union and without affording the Union an opportunity
to bargain with respect to these changes and their ef-
fects.
(l)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.
(a) Reinstate the telephone privileges previously en-
joyed by its employees.
(b) Offer Michael Harris immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth
in the remedy section of this decision.
(c) Remove from its files any reference to the un-
lawful discharge and notify the employee in writing
that this has been done and that the discharge will not
be used against him in any way.
(d) On request, bargain with the Union as the exclu-
sive representative of employees in the following ap-
propriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and regular part-time production and
maintenance employees employed by the Re-
spondent at its Tonawanda, New York facility;
excluding all office clerical and professional em-
ployees, guards and supervisors as defined in the
Act, and all other employees.
(e) Offer Thomas Guyatt, William Englert, Jason
Williams, and John Kratz immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exists, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a
result of the unlawful layoffs, in the manner set forth
in the remedy section of this decision.
(f) Remove from its files any reference to the un-
lawful layoffs and notify the employees in writing that
this has been done and that the layoffs will not be used
against them in any way.
(g) 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 amount of backpay
due under the terms of this Order.
(h) Post at its Tonawanda, New York facility copies
of the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 3, 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.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
939E. R. INDUSTRIES
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT make threats of futility of representa-
tion, plant closure, layoff, discharge, permanent re-
placement, and other unspecified reprisals.
WE WILL NOT solicit grievances and promise bene-
fits if our employees refrain from union activities.
WE WILL NOT coercively interrogate any employee
about union activities or sentiments.
WE WILL NOT create the impression of surveillance
of employees’ union activities.
WE WILL NOT solicit our employees to oppose the
Union or to persuade others to refrain from engaging
in union activities.
WE WILL NOT solicit employees to form and partici-
pate in an employee committee and promise to rectify
grievances through the committee if employees refrain
from union activity.
WE WILL NOT direct our employees to poll other
employees concerning their union support and to report
the results to us.
WE WILL NOT rescind and/or alter employee tele-
phone privileges in order to discourage union activity.
WE WILL NOT discharge or otherwise discriminate
against any employee for supporting International
Union of United Automobile Workers, AFL–CIO or
any other labor organization.
WE WILL NOT refuse to bargain with International
Union of United Automobile Workers, AFL–CIO as
the exclusive bargaining representative of the employ-
ees in the bargaining unit.
WE WILL NOT lay off employees in the bargaining
unit or make other changes in the rates of pay, wages,
hours of employment, and other terms and conditions
of employment of unit employees without prior notice
to the Union and without affording the Union an op-
portunity to bargain with respect to these changes and
their effects.
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 reinstate the telephone privileges pre-
viously enjoyed by our employees.
WE WILL offer Michael Harris immediate and 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 privi-
leges previously enjoyed, and make him whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against him
WE WILL remove from our files any reference to the
unlawful discharge and notify the employee in writing
that this has been done and that the discharge will not
be used against him in any way.
WE WILL, on request, bargain with the Union as the
exclusive representative of employees in the following
appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
All full-time and regular part-time production and
maintenance employees employed by us at our
Tonawanda, New York facility; excluding all of-
fice clerical and professional employees, guards
and supervisors as defined in the Act, and all
other employees.
WE WILL offer Thomas Guyatt, William Englert,
Jason Williams, and John Kratz immediate and full re-
instatement to their former jobs or, if those jobs no
longer exists, 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 unlawful layoffs.
WE WILL remove from our files any reference to the
unlawful layoffs and notify the employees in writing
that this has been done and that the layoffs will not
be used against them in any way.
E. R. INDUSTRIES, INC.