Super Carbide Tools

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1052 (N.L.R.B. 1992)

1052
307 NLRB No. 164
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 By letter dated June 5, 1992, Attorney James W. Boyd, the Re-
spondent’s trustee in bankruptcy, advised the Board that the Re-
spondent was involved in chapter 7 bankruptcy proceedings. The
trustee’s letter, however, does not constitute a proper response as
there is no indication that a copy of the letter was served on all par-
ties to the proceeding, as required by the Board’s Notice to Show
Cause. We note, in any event, that the institution of bankruptcy pro-
ceedings does not deprive the Board of jurisdiction or authority to
entertain and process an unfair labor practice case to its final dis-
position. Board proceedings fall within the exception to the auto-
matic stay provision for proceedings by a governmental unit to en-
force its police or regulatory powers. See Phoenix Co., 274 NLRB
995 (1985). Member Devaney agrees that the Respondent’s bank-
ruptcy proceedings do not deprive the Board of jurisdiction or serve
to stay the Board’s proceedings in this case, and finds it unnecessary
to pass on whether the trustee’s letter constitutes a response to the
Board’s notice to show cause.
Super Carbide Tools, Inc. and International Union,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America, (UAW),
AFL–CIO and its Local 982 and Florida Super,
Inc., Party in Interest. Case 7–CA–33002
June 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon a charge filed by the Union on March 5, 1992,
the General Counsel of the National Labor Relations
Board issued a complaint against Super Carbide Tools,
Inc., the Respondent, alleging that it has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) and Section 8(d) of the National Labor
Relations Act. Although properly served copies of the
charge and complaint, the Respondent has failed to file
an answer.
On May 22, 1992, the General Counsel filed a Mo-
tion for Summary Judgment. On May 27, 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.1 The allegations in the motion are therefore
undisputed.
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
of the complaint shall be considered 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 by letter dated April 23, 1992,
the Regional attorney for Region 7 notified the Re-
spondent that unless an answer was received by May
7, 1992, a Motion for Default Judgment would be
filed. To date, no answer has been filed by the Re-
spondent.
In the absence of good cause being shown for the
failure to file a timely 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 Michigan corporation, maintains
its principal place of business at First and Bridge
Streets, Elk Rapids, Michigan, where it is engaged in
the manufacturing and nonretail sale of carbide tipped
and solid carbide cutting tools and related products.
During the calendar year ending December 31, 1991,
a representative period, the Respondent, in the course
and conduct of its business operations, sold and
shipped from its Elk Rapids, Michigan plant products
valued in excess of $50,000 directly to points located
outside the State of Michigan. We find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since about 1960, the Union has been the designated
exclusive collective-bargaining representative of the
Respondent’s employees in an appropriate unit and,
since then, has been recognized as such by the Re-
spondent, such recognition having been embodied in
successive collective-bargaining agreements, the most
recent of which was effective from June 1, 1991, to
May 31, 1992. At all relevant times, the Union has
been and continues to be the exclusive collective-bar-
gaining representative of the Respondent’s unit em-
ployees within the meaning of Section 9(a) of the Act.
The appropriate bargaining unit consists of:
All employees employed by the Respondent at its
facility located at First and Bridge Streets, Elk
Rapids, Michigan; but excluding foremen, office
or clerical employees and plant guards.
Since on or about September 5, 1991, and con-
tinuing to date, the Respondent has failed and refused
to make the following payments to or on behalf of unit
employees: vacation pay, 401(k) contributions, produc-
tivity improvement plan payments (PIP), Christmas
bonus, health insurance premiums, and life insurance
premiums, all of which are mandatory subjects of bar-
gaining. By engaging in such conduct without having
affording the Union notice or an opportunity to bargain
1053SUPER CARBIDE TOOLS
2 Lemkau and Cole are supervisors and agents of the Respondent
within the meaning of Sec. 2(11) and (13) of the Act.
3 Any additional amounts applicable to the payments to be made
to the various benefit funds shall be computed in the manner pre-
scribed in Merryweather Optical Co., 240 NLRB 1213 (1979). Inter-
est on the other payments shall be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
over its actions or seeking the Union’s agreement, the
Respondent has engaged and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
and (5) and Section 8(d) of the Act, as alleged.
The Respondent further engaged in violations of
Section 8(a)(1) when its president, Dennis Lemkau,
told employees on or about October 1, 1991, that they
had to get rid of the Union if the Respondent was ever
to sell its plant; when Lemkau asked employees in or
about early January 1992, why they had not signed the
certification petition that was being circulated at the
plant, and when he advised them in or about February
1992, that only a few more signatures were needed for
the decertification petition; and when Respondent’s
plant manager, Russ Cole, threatened employees in or
about February 1992 with loss of their jobs if they did
not sign the decertification petition.2
CONCLUSIONS OF LAW
1. By unilaterally failing and refusing to make pay-
ments to or on behalf of unit employees with respect
to vacation pay, 401(k) contributions, productivity im-
provement plan payments (PIP), Christmas bonus,
health insurance premiums, and life insurance pre-
miums, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 8(d), and Section
2(6) and (7) of the Act.
2. By telling employees they had to get rid of the
Union if the Respondent was to sell its plant, asking
employees why they had not signed a decertification
petition being circulated at its plant and advising them
that only a few more signatures were needed for the
petition, and by threatening employees with loss of
their jobs if they did not sign the decertification peti-
tion, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and 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.
The Respondent shall be ordered to restore the status
quo ante in effect prior to the unilateral changes made
in the unit employees’ terms and conditions of em-
ployment on or about September 5, 1991, and to make
the following payments that have not been made since
September 5, 1991: vacation pay, 401(k) contributions,
productivity improvement plan payments (PIP), Christ-
mas bonus, health insurance premiums, and life insur-
ance premiums.3 We shall also order the Respondent
to make unit employees whole for any expenses they
may have incurred because of the Respondent’s failure
and refusal to make any of the above payments, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn.
2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981),
with interest as prescribed in New Horizons for the Re-
tarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Super Carbide Tools, Inc., Elk Rapids,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, (UAW), AFL–CIO and its
Local 982, which is the exclusive collective-bargaining
representative of the Respondent’s employees in an ap-
propriate unit, by unilaterally and without notice to or
bargaining with the Union or seeking the Union’s
agreement, failing and refusing to make the following
payments to or on behalf of unit employees: vacation
pay, 401(k) contributions, productivity improvement
plan payments (PIP), Christmas bonus, health insur-
ance premiums, and life insurance premiums. The ap-
propriate unit consists of:
All employees employed by the Respondent at its
facility located at First and Bridge Streets, Elk
Rapids, Michigan; but excluding foremen, office
or clerical employees and plant guards.
(b) Telling employees they have to get rid of the
Union if the Respondent is to sell its plant, asking em-
ployees why they have not signed a decertification pe-
tition that was circulated at its plant and advising them
that only a few more signatures are needed for the pe-
tition, and threatening employees with loss of jobs if
they do not sign the decertification petition.
(c) 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) Restore the status quo ante in effect prior to the
unilateral changes that were made in the employees’
terms and conditions of employment on September 5,
1991, and make the following payments that have not
been made since September 5, 1991, to or on behalf
of the unit employees: vacation pay, 401(k) contribu-
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.’’
tions, productivity improvement plan payments, Christ-
mas bonus, health insurance premiums, and life insur-
ance premiums, with interest as set forth in the remedy
section of this decision.
(b) Make unit employees whole for any expenses
they may have incurred as a result of the Respondent’s
failure and refusal to make any of the above payments,
with interest as set forth in the remedy portion of this
decision.
(c) 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.
(d) Post at its facility in Elk Rapids, Michigan, cop-
ies of the attached notice marked ‘‘Appendix.’’4 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 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 al-
tered, defaced, or covered by any other material.
(e) 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 refuse to bargain with International
Union, United Automobile, Aerospace and Agricultural
Implement Workers Of America, (UAW), AFL–CIO
and its Local 982, which is the exclusive collective-
bargaining representative of our employees in an ap-
propriate unit, by unilaterally, and without notice to or
bargaining with the Union, failing and refusing to
make the following payments to or on behalf of unit
employees: vacation pay, 401(k) contributions, produc-
tivity improvement plan payments, Christmas bonus,
health insurance premiums, and life insurance pre-
miums. The appropriate bargaining unit consists of:
All employees employed by the Respondent at its
facility located at First and Bridge Streets, Elk
Rapids, Michigan; but excluding foremen, office
or clerical employees and plant guards.
WE WILL NOT tell our employees that they have to
get rid of the Union if we are to sell our plant, WE
WILL NOT ask them why they have not signed a decer-
tification petition that was circulated at our plant nor
advise them that only a few more signatures are need-
ed on the petition, and WE WILL NOT threaten employ-
ees with loss of jobs if they do not sign the decertifica-
tion petition.
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 restore the status quo ante that existed
prior to the unilateral changes that were made in our
employees’ terms and conditions of employment on
September 5, 1991, and WE WILL make the following
payments, with interest, that have not been to or on be-
half of unit employees since September 5, 1991: vaca-
tion pay, 401(k) contributions, productivity improve-
ment plan payments, Christmas bonus[es], health insur-
ance premiums, and life insurance premiums.
WE WILL make whole unit employees for any ex-
penses they may have incurred as a result of our fail-
ure and refusal to make any of the above payments,
with interest.
SUPER CARBIDE TOOLS, INC.