Fenetrol, Inc.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 846 (N.L.R.B. 1980)

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fenetrol, Inc., a Subsidiary of Yonkers Plate Glass Co. and Shopmen's Local Union No. 455, Inter- national Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 2- CA-16827 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBF.RS PENEII.O AND TRUESDALE Upon a charge filed on October 16, 1979, by Shopmen's Local Union No. 455, International As- sociation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called the Union, and duly served on Fenetrol, Inc., a Subsidiary of Yonkers Plate Glass Co., herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Acting Regional Director for Region 2, issued a complaint and notice of hearing on December 14, 1979, against Respondent, alleg- ing that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice hearing before an Administrative Law Judge were duly served on the parties to this proceeding. On April 30, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment based on Respondent's failure to file an answer as required by Section 102.20 of the Board's Rules and Regulations, Series 8, as amended. Subsequently, on May 2, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent failed to file a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer there- to. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. 251 NLRB No. 120 All the allegations in the complaint not specifi- cally denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the con- trary is shown. The complaint and notice of hearing served on Respondent specifically states that unless an answer to the complaint is filed by the Respondent within 10 days of service thereof "all of the allegations in the Complaint shall be deemed to be admitted by it to be true and may be so found by the Board." Ac- cording to the Motion for Summary Judgment, Re- spondent sought on January 25, 1980, an extension of time in which to file its answer. On January 30, 1980, Respondent was granted an extension of time until February 29, 1980, to file its answer. On April 14, 1980, counsel for General Counsel wrote a letter to Respondent's president advising him that unless an answer was received by April 22, 1980, a motion for summary judgment would be filed. As noted, Respondent did not file a response to the Notice To Show Cause. It thu;s appears from the uncontroverted allegations of the Motion for Summary Judgment that Respondent was informed of the action against it and, despite the requests to file an answer and the liberal extensions of time in which to do so, Respondent failed to file an answer to the complaint. No good cause to the contrary having been shown for the failure to file an answer in accordance with the rule set forth above, the al- legations of the complaint are deemed to be ad- mitted and are found to be true. Accordingly, we grant the Motion for Summary Judgment. FINDINGS OF FACT I. THE BUSINESS OF RESPONDE NT Respondent is a New York corporation with an office and place of business in Bronx, New York, where it is engaged in the manufacture and nonre- tail sale and distribution of curtain walls and win- dows and related products. Respondent annually purchased goods and materials valued in excess of $50,000, which either are transported and delivered to its plant in Bronx, New York, directly from points outside the State of New York, or are re- ceived from sources located in the State of New York, each of which will have received the said goods and materials delivered to them in the State of New York directly from points outside the State of New York. We find on the basis of the foregoing that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the FENETROL. INC. 847 Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICE CASES A. The 8(a)(l) Violations Around the first 2 weeks of September 1979, Re- spondent, through its supervisors, threatened em- ployees with the loss of their jobs if they attended a meeting on behalf of the Union, encouraged em- ployees to abandon their support of the Union and to support a labor organization to be chosen by Re- spondent, and polled employees as to their support for Respondent. On or about September 20, 1979, Respondent, through its officers and supervisors, interrogated employees regarding their membership in and support of the Union. We find that by engaging in the conduct de- scribed above, Respondent has interfered with, re- strained, and coerced, and is interfering with, re- straining, and coercing its employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. Accordingly, we find that Respondent thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. B. The 8(a)(3) and (1) Violations In addition to the conduct described above in section III, A, Respondent committed the follow- ing acts: I. On or about September 21, 1979, Respondent discharged employees Eddie Ortiz and Winseth Green and since September 21, 1979, has refused and is refusing to reinstate them because of their membership in, and support or assistance of, the Union, and in order to discourage employees from engaging in such activities or other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection. 2. On or about September 21, 1979, Respondent discharged certain unfair labor practice strikers' and since September 21, 1979, until on or about November 23, 1979, Respondent failed and refused to reinstate or to offer to reinstate said employees because they engaged in an unfair labor practice strike and in order to discourage employees from I The employees involved are. Percival Huggins, William Dove. Juan Feliciano. A Perez, Daid Huerlas, Richard Bryanl. Richard Brice, Adalberto Cardo,. Hector Delgado. and Santiago Perez. engaging in such activities or other conceited ac- tivities for the purpose of collective bargaining or other mutual aid or protection. We find that by engaging in the above-described conduct, Respondent has discriminated, and contin- ues to discriminate, against the named employees in regard to their hire or tenure of employment in order to discourage union or other protected con- certed activities. Accordingly, we find that by such conduct Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. CONCUSIONS OF LAW i. Fenetrol, Inc., a subsidiary of Yonkers Plate Glass Co., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended. 2. Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section III, A, above, Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing, employees in the exercise of their Section 7 rights, and thereby did engage in, and is engaging in, unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 4. By discharging employees Eddie Ortiz and Winseth Green on or about September 21, 1979, because of their membership in and support or as- sistance of the Union and in order to discourage employees from engaging in such activities or other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, Respondent violated Section 8(a)(3) and (1) of the Act. 5. By discharging the employees named in foot- note 1, above, on or about September 21, 1979, be- cause of their engaging in an unfair labor practice strike, and in order to discourage employees from engaging in such activity or other concerted activi- ties for the purpose of collective bargaining or Act, and that it will effectuate the policies of the FENETROL. INC 47 848 DECISIONS OF NATIONAL LABO()R RELATIONS BO()ARD other mutual aid or protection, Respondent violat- ed Section 8(a)(3) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act.2 Respondent shall be ordered to offer the employ- ees it discriminatorily discharged any loss of pay they may have suffered by reason of the discrimi- nation against them from the date they were dis- charged to the date Respondent offered to reinstate them. Backpay is to be paid as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Fenetrol, Inc., a Subsidiary of Yonkers Plate Glass Co., Bronx, New York, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because they are members of and support or assist Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO. (b) Discharging employees because they engaged in an unfair labor practice strike. (c) Threatening its employees with loss of their jobs if they attended a meeting on behalf of the above-mentioned Union. (d) Encouraging its employees to abandon their support of the Union and encouraging them to sup- We have found here that Respondenl discharged 14 employees and engaged in other conduct which interfered with. restrained. and coerced its employees in the exercise of their Sec 7 rights. In our decision in f in- errol Inc.. a ubhidiary of Yonkers Plate Glass Co.. 251 NLRB No 113, issued today. we have found that Respondent engaged in conduct viola- live of Sec. 8(a)(1) and (2) of the Act. he unfair labor practices commit- led by Respondent ill that case occurred before the unfair labor practices committed by it in the instant case. Consequently, the violations in this case indicate that Responldent has continued to engage in unlawful conl- duct disruptive of its emplorees' statutory rights and in disregard thereof Accordingly, we find that Respondent has demonstrated a proclivity to violate the Act and thus that the issuance of a broad cease-and-desist order, i.e.. "ill any other manner- is warranted. liwknmolt Foods. A ,. 242 NI.RB 1357 (1979). ' See, generally, Isis Plumbing & liualting (o. 13 NRB 71h (Iqh2) port a labor organization to be chosen by the Com- pany. (e) Polling its employees as to their sympathies and support for the Company. (f) Interrogating its employees regarding their membership in and support of the Union. (g) In any other manner interfering with, re- straining, or coercing its employees in the exercise of the rights 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 employees Eddie Ortiz and Winseth Green full and immediate reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent jobs, without prejudice to their seniority, or other rights and privileges previ- ously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the dis- crimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer to make whole the employees listed below for any loss of pay they may have suffered from the date they were discriminatorily dis- charged to the date Respondent offered to reinstate them in the manner set forth in the section of this Decision entitled "The Remedy." The employees are: Percival Huggins William Dove Juan Feliciano A. Perez David Huertas Richard Bryant Richard Brice Adalberto Cardo Hector Delgado Santiago Perez (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, 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 Bronx, New York, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- 4 In the event that his Order is enforced hy a Judgment of a United States Court of Appeals, the words i the notice reading Posted by )rder of the National Lahbor Relations Board" shall read "Polted Pursu- ant to it Judgment of the IUnited States Court of Appeaks n forcing an Order orf the National abor Relations Board" FENETROI, INC 840) sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX Noriici To EMPI OY:I:S POSTH)D BY ORDI R O THE NAIIONAI LABOR REI.AIONS BOARD An Agency of the United States Government WI wll.l NOT discharge or in any other manner discriminate against our employees be- cause they are members of and support or assist Shopmen's Local Union No. 455, Inter- national Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization. WtE wii. NOt discharge our employees be- cause they engaged in an unfair labor practice strike. WF. Will NOT threaten our employees with the loss of their jobs if they attended a union meeting. WtI WI.t. NOT encourage our employees to abandon their support for the Union and to en- courage them to support a labor organization to be chosen by the Company. Wt- WILl NOI poll our employees as to their sympathies and support for the Company. WEi WVI I NOT interrogate our employees re- garding their membership in and support of the Union. Wr W.ll. NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. Wt wii.i offer employees Eddie Ortiz and Winseth Green full and immediate reinstate- ment to their former jobs or, if those jobs no longer exists, to substantially equivalent jobs, without prejudice to their seniority, or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimina- tion against them, with interest. WE. wit offer to make whole the employ- ees listed below for any loss of pay they may have suffered from the date they were discri- minatorily discharged to the date they were offered reinstatement, with interest. Percival Huggins Juan Feliciano David Huertas Richard Brice Hector Delgado William Dove A. Perez Richard Bryant Adalberto Cardo Santiago Perez FENIFTROI., INC., A SUBSIDIARY OF YONKERS Pl ATE GLASS Co. FNTROI. N S )