Honeycomb Fabricators, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1976

225 N.L.R.B. 978 (N.L.R.B. 1976)

978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Honeycomb Fabricators , Inc. and Michael Kornberger
and Local 807 , International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of
America . Cases 29-CA-4682 and 29-CA-4823
August 18, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
Upon charges filed on November 7, 1975, by Mi-
chael Kornberger, an individual, and on January 19,
1976, by Local 807, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, and duly served
on Honeycomb Fabricators, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 29, issued a complaint and notice of hearing
on January 14 and February 27, 1976, respectively, in
Cases 29-CA-4682 and 29-CA-4823 against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charges,
complaints, and notices of hearing before an Admin-
istrative Law Judge were duly served on the parties
to this proceeding. On March 3, 1976, the Regional
Director issued an order consolidating cases and no-
tice of hearing.
With respect to the unfair labor practices, the com-
plaint in Case 29-CA-4682 alleges in substance that
on or about November 3, 1975, and on various other
dates during November 1975, Respondent, through
its supervisors, interrogated its employees concerning
their membership in, and activity on behalf of, the
Union; warned its employees to refrain from becom-
ing members of or assisting the Union; threatened its
employees with discharge and other reprisals if they
became or remained members of the Union; and, on
or about October 20, 1975, discharged and failed to
reinstate its employee, Michael Kornberger, because
he had joined and assisted the Union. The complaint
in Case 29-CA-4823 alleges, in substance, that on or
about November 11, 1975, the Respondent dis-
charged its employees Rocco Giorgio, Glenn Hazell,
and Nicholas Ponticiello and refused to reinstate
them because they joined and assisted the Union. On
January 26, 1976, Respondent filed its answer to the
complaint in Case 29-CA-4682, admitting in part,
and denying in part, the allegations of the complaint.
It failed to file an answer in Case 29-CA-4823.
On April 16, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 22, 1976, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent thereafter failed
to file a response to 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 102.30 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 thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the com-
plaint, unless the respondent is without knowl-
edge, in which case the respondent shall so state,
such statement operating as a denial. All allega-
tions in the complaint, if no answer is filed, or
any allegation in the complaint not specifically
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 ad-
mitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
Each complaint and notice of hearing served on
the Respondent specifically states that unless an an-
swer to the complaint is filed by the Respondent
within 10 days of service thereof "all the allegations
in the Complaint shall be deemed to be admitted by
it to be true and may be so found by the Board." On
January 26, 1976, Respondent filed an answer in
Case 29-CA-4682 . However , by letters dated Febru-
ary 20 and March 15, 1976, copies of which are at-
tached to the uncontroverted Motion for Summary
Judgment as Exhibits G and H, Respondent ' s attor-
ney notified counsel for the General Counsel that
Respondent had become a defunct corporation and
was for all intents and purposes out of business. Ac-
cordingly, in such letters , Respondent 's attorney ad-
vised that Respondent would not appear at the
scheduled hearing in consolidated Cases 29-CA-
4682 and -4823, and that Respondent ' s previously
filed answer in Case 29-CA-4682 was withdrawn.
According to the uncontroverted Motion for Sum-
mary Judgment, on March 15 , 1976, Respondent's
225 NLRB No. 143
HONEYCOMB FABRICATORS, INC. 979
counsel orally advised counsel for the General Coun-
sel that no answer would be filed in Case 29-CA-
4823, and none ever was. Accordingly, counsel for
the General Counsel orally advised Respondent that
he would seek summary judgment on the outstanding
complaints. Further, as noted above, Respondent has
failed to file a response to the Notice To Show
Cause.
Accordingly, under the rule set forth above, in
view of Respondent's failure to answer the com-
plaints, no good cause having been shown for such
failure, the allegations of the complaints are deemed
admitted and are found to be true and we shall, ac-
cordingly, grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a New York corporation with its
principal office and place of business in Bay Shore,
New York, where it engages in the manufacture, sale,
and distribution of prefabricated, special purpose
buildings and related products. During the past fiscal
year Respondent manufactured and sold products
valued in excess of $50,000, which were shipped di-
rectly to States other than the State of New York.
During the same period Respondent purchased and
received materials valued in excess of $50,000 which
were delivered to its plant from States other than
New York.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
warned and directed its employees to refrain from
becoming or remaining members of the Union or as-
sisting the Union; and it threatened its employees
with discharge and other reprisals if they became or
remained members of the Union.
We find that, by the conduct described above, Re-
spondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed
them under Section 7 of the Act and, by such con-
duct, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
B. The 8(a)(3) Violations
On or about October 20, 1975, Respondent dis-
charged its employee Michael Kornberger and, on or
about November 11, 1975, discharged its employees
Rocco Giorgio, Glenn Hazell, and Nicholas Ponti-
ciello, because they had joined and assisted the
Union, and thereafter refused to reinstate or offer
reinstatement to said employees.
We find that, by the conduct described above, Re-
spondent discriminated in regard to the terms and
conditions of employment of its employees, Michael
Kornberger, Rocco Giorgio, Glenn Hazell, and
Nicholas Ponticiello, thereby discouraging member-
ship in a labor organization, and, by such conduct,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
Local 807, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Violations
On or about November 3, 1975, and on various
other dates during November 1975, Respondent in-
terrogated its employees concerning their member-
ship in, and activities on behalf of, the Union; it
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act, we shall
order that Respondent cease and desist therefrom
and take certain affirmative action designed to effec-
tuate the policies of the Act.
We have found that Respondent discriminatorily
discharged and failed to reinstate or offer to reinstate
employees Michael Kornberger, Rocco Giorgio,
Glenn Hazell, and Nicholas Ponticiello, and we shall
order that said employees be offered reinstatement to
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their former or substantially equivalent positions, or,
if Respondent is no longer in business at its Bay
Shore, New York, location, that they be offered rein-
statement at any location in which Respondent re-
opens its business. We shall also order that Respon-
dent make said employees whole for any loss of pay
suffered by reason of the discrimination against
them, if Respondent reopens its business, backpay
shall be based upon the earnings which the above-
named employees would normally have received
from the date of their discharge to the date of
Respondent's offer of reinstatement, less any net in-
terim earnings; if Respondent does not reopen its
business, the backpay liability will run from the date
the discriminatees were discharged to the date that
Respondent would normally have terminated such
employees when it went out of business.' The back-
pay shall be computed on the basis set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
In view of the circumstances herein, we shall also
order that the Respondent mail copies of the at-
tached notice marked "Appendix" to the Union and
to all employees employed by it during 1975 at their
last known addresses, and if Respondent has reestab-
lished or does reopen its business it shall also post the
notice at such location.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Honeycomb Fabricators, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 807, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed
them by Section 7 of the Act, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and ten-
ure of employment of employees, thereby discourag-
ing membership in or activities on behalf of a labor
organization, Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
1 Tori Dress, Inc, 222 NLRB 414 (1976)
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,
Honeycomb Fabricators, Inc., Bay Shore, New York,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their
membership in, activities on behalf of, and sympathy
for Local 807, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization.
(b) Warning and directing their employees to re-
frain from giving any assistance or support to Local
807, International Brotherhood of Teamsters, Chauf-
eurs, Warehousemen and Helpers of America, or any
other labor organization.
(c) Threatening its employees with discharge and
other reprisals if they become or remain members of,
or if they give assistance and support to, Local 807,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization.
(d) Discouraging membership in, or activities on
behalf of, the aforementioned Union, or any other
labor organization, by discriminatorily discharging
or terminating and refusing to reinstate employees,
or by otherwise discriminating in regard to the hire
and tenure of its employees because they joined or
assisted the aforementioned Union, or any other la-
bor organization, or engaged in other concerted ac-
tivity for the purposes of collective bargaining or
other mutual aid and protection.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the National Labor
Relations Act, as amended.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) If and when the Respondent resumes its manu-
facturing operations, offer to reinstate employees Mi-
chael Kornberger, Rocco Giorgio, Glenn Hazell, and
Nicholas Ponticiello to their former positions or, if
those positions no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
other rights and privileges.
(b) Make whole the employees listed in paragraph
(a), above, for any loss of pay they may have suffered
by reason of the discrimination against them in the
manner set forth in the section of this Decision enti-
tled "The Remedy."
(c) Post at its reestablished or reopened location,
if any, copies of the attached notice marked "Appen-
HONEYCOMB FABRICATORS, INC. 981
dix." z Copies of said notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent 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.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Inasmuch as the posting of a notice as custom-
arily required would not reach the affected employ-
ees of a defunct operation, Respondent shall mail a
copy of the attached notice marked "Appendix" to
the Union and to all employees employed by Re-
spondent in 1975 at their last known addresses. Cop-
ies of said notice, to be provided by the Regional
Director for Region 29, after being duly signed by an
authorized representative of the Respondent, shall be
mailed immediately after the receipt thereof.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary for determination of back-
pay due under the terms of this Order.
(f) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
2 In the event that 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning their membership in, activities on behalf
of, and sympathy for Local 807, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
labor organization.
WE WILL NOT warn and direct our employees
to refrain from giving any assistance or support
to Local 807, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organi-
zation.
WE WILL NOT threaten our employees with dis-
charge and other reprisals if they become or re-
main members of, or if they give assistance and
support to, Local 807, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor or-
ganization.
WE WILL NOT discourage membership in, or
activities on behalf of, the above-described
Union, or any other labor organization, by dis-
criminatorily discharging or terminating em-
ployees, or by otherwise discriminating in regard
to the hire and tenure of our employees because
they joined or assisted the aforementioned
Union, or any other labor organization, or en-
gaged in other concerted activity for the purpos-
es of collective bargaining or other mutual aid
and protection.
WE WILL 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.
WE WILL, if and when we resume our manu-
facturing operations, offer to reinstate employ-
ees Michael Kornberger, Rocco Giorgio, Glenn
Hazell, and Nicholas Ponticiello to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges.
WE WILL make whole, with interest, the em-
ployees listed above for any loss of pay they
may have suffered by reason of the discrimina-
tion against them.
HONEYCOMB FABRICATORS, INC.