Viox Services

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 697 (N.L.R.B. 1992)

697
308 NLRB No. 95
VIOX SERVICES
1 See Maislin Transport, 274 NLRB 529 (1985).
Viox Services, Inc. and Local 212, International
Brotherhood of Electrical Workers, AFL–CIO–
CLC. Cases 9–CA–28310, 9–CA–28597, 9–CA–
28697, 9–CA–28820, and 9–CA–29231
August 31, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Upon charges and amended charges filed by Local
212, International Brotherhood of Electrical Workers,
AFL–CIO–CLC, the Union, the General Counsel of
the National Labor Relations Board issued a complaint
and various consolidated complaints in 1991 against
Viox Services, Inc., the Respondent. The 1991 com-
plaints and consolidated complaints were the subject of
an informal settlement agreement which was approved
on December 20, 1991. Following the filing of a fur-
ther charge on January 15, 1992, on February 27,
1992, the General Counsel issued an order consolidat-
ing cases, consolidated complaint, order vacating set-
tlement agreement and notice of hearing (consolidated
complaint) alleging that the Respondent has violated
Section 8(a)(1), (3), and (4) of the National Labor Re-
lations Act. By letter of July 21, 1992, the Respondent
withdrew the answers filed in all the above-captioned
matters with the understanding that the General Coun-
sel would proceed to summary judgment against it.
On August 6, 1992, the General Counsel filed a Mo-
tion for Summary Judgment. On August 11, 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. The allegations in the motion are therefore un-
disputed.
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 consolidated complaint states that unless
an answer is filed within 14 days of service, ‘‘all the
allegations in the consolidated complaint shall be con-
sidered to be admitted to be true and shall be so found
by the Board.’’ The undisputed allegations in the Mo-
tion for Summary Judgment disclose that by letter of
July 21, 1992, the Respondent withdrew all answers in
this matter. Such a withdrawal has the same effect as
a failure to file an answer, i.e., the allegations in the
consolidated complaint must be considered to be ad-
mitted to be true.1
Accordingly, in the absence of good cause being
shown otherwise, we grant the General Counsel’s Mo-
tion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, has been engaged as
a general contractor in the construction industry in the
greater Cincinnati, Ohio area. During the 12-month pe-
riod ending December 31, 1991, the Respondent pur-
chased and received at its Ohio jobsites goods valued
in excess of $50,000 directly from points outside the
State of Ohio. We find that the Respondent is an em-
ployer engaged 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.
II. ALLEGED UNFAIR LABOR PRACTICES
On or about February 12, 1991, the Respondent
threatened to discharge employees for engaging in
union activities, threatened to delay any representation
election for 2 years in order to discourage employees’
support for the Union, and threatened employees with
unspecified reprisals for engaging in union activities.
On or about February 14, 1991, the Respondent
impliedly threatened employees with discharge for en-
gaging in union activities, threatened its employees
that their selection of the Union as their collective-bar-
gaining representative would be futile because the Re-
spondent would never sign a contract, and impliedly
threatened employees regarding their support for and
activities on behalf of the Union. About July 1, 1991,
the Respondent informed an employee that he had
‘‘two strikes’’ against him, the Union and OSHA, and
threatened him with more onerous work and working
conditions to discourage his union activities.
Since about February 15, 1991, the Respondent pro-
mulgated and since then has maintained a rule which
prohibits employees from discussing their wages and
which threatens employees with termination or other
disciplinary action for violating the rule. The Respond-
ent promulgated and maintained this rule in order to
discourage its employees from forming, joining, or as-
sisting the Union or engaging in other concerted activi-
ties.
About February 11, 1991, and continuing thereafter,
the Respondent imposed more onerous working condi-
tions on employee Bruce Jones and changed his work-
ing conditions and hours of work. About March 5,
1991, the Respondent laid off Jones. The Respondent
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
imposed more onerous working conditions; changed
working conditions and hours of work; and laid off
Jones because he joined, supported, or assisted the
Union, to discourage employees from engaging in
these activities.
About May 1, 1991, the Respondent discharged and
at all times thereafter until about June 20, 1991, re-
fused to reemploy Jones. About June 20, 1991, the
date of Jones’ reemployment, and continuing through
July 3, 1991, the Respondent imposed more onerous
working conditions on Jones by assigning him to
manually dig a trench, requiring him to pay for drink-
ing water, and allowing other employees to harass and
endanger him. About July 1, 1991, the Respondent
issued two written warnings to Jones. The Respondent
discharged Jones; refused to reemploy Jones; imposed
more onerous working conditions on Jones, and issued
written warnings to Jones because he joined, sup-
ported, or assisted the Union, to discourage employees
from engaging in these activities, or because Jones
gave testimony to the Board in the form of an affida-
vit.
About January 6, 1992, the Respondent issued an
unfavorable performance review to Jones. About Janu-
ary 13 until February 14, 1992, the Respondent laid off
Jones. The Respondent issued an unfavorable perform-
ance review and laid off Jones because he joined, sup-
ported, or assisted the Union, to discourage employees
from engaging in these activities, or because Jones
gave testimony to the Board in the form of an affidavit
and participated in the Board’s process.
CONCLUSIONS OF LAW
1. By making various threats and implied threats in
February and July 1991, and promulgating and main-
taining a rule since about February 15, 1991, the Re-
spondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
2. By imposing more onerous working conditions
and changing working conditions and hours of work of
employee Bruce Jones in February 1991, and laying
off Jones in March 1991, the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the Act.
3. By discharging Jones about May 1, 1991, and re-
fusing to reemploy him until about June 20, 1991, by
imposing more onerous working conditions on Jones
from about June 20 through July 3, 1991, by issuing
two written warnings to Jones about July 1, 1991, by
issuing an unfavorable performance review to Jones
about January 6, 1992, and by laying off Jones about
January 13 until February 14, 1992, the Respondent
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1), (3), and
(4) 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.
Having found that the Respondent unlawfully laid
off employee Bruce Jones at various times and having
found that the Respondent unlawfully discharged and
refused to reemploy Jones, we shall order the Re-
spondent to make whole its employee Bruce Jones for
any loss of earnings as a result of the discrimination
against him with backpay calculated as set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Viox Services, Inc., Reading, Ohio, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge employees for engaging
in union activities, threatening to delay any representa-
tion election in order to discourage employees’ support
for the Union, threatening employees with unspecified
reprisals for engaging in union activities, impliedly
threatening employees with discharge for engaging in
union activities, threatening its employees that their se-
lection of the Union as their collective-bargaining rep-
resentative would be futile because the Respondent
would never sign a contract, impliedly threatening em-
ployees regarding their support for and activities on
behalf of the Union, informing an employee that he
had ‘‘two strikes’’ against him, the Union and OSHA,
and threatening him with more onerous work and
working conditions to discourage his union activities.
(b) Promulgating and maintaining a rule which pro-
hibits employees from discussing their wages and
which threatens employees with termination or other
disciplinary action in order to discourage employees
from forming, joining, or assisting the Union, or en-
gaging in other concerted activities.
(c) Imposing more onerous working conditions;
changing working conditions and hours of work; lay-
ing off employees; discharging and refusing to reem-
ploy employees; issuing written warnings to employ-
ees; and issuing unfavorable performance reviews to
employees because they joined, supported, or assisted
the Union to discourage employees from engaging in
such activities, and/or because they gave testimony to
the Board and participated in the Board’s processes.
699VIOX SERVICES
2 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.’’
(d) In any like or related manner interfering with,
restraining, 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) Make whole its employee Bruce Jones for any
losses suffered in the manner set forth in the remedy
section of this decision.
(b) Remove from its files any references to the un-
lawful layoffs, discharge, written warnings, and per-
formance appraisal of Bruce Jones, and notify him in
writing that this has been done and that the unlawful
actions will not be used against him in any way.
(c) Rescind the unlawful rule prohibiting employees
from discussing their wages and threatening employees
with termination or other disciplinary action for violat-
ing the rule.
(d) 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.
(e) Post at its facility in Reading, Ohio, copies of
the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director
for Region 9, 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.
(f) 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.
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 threaten to discharge our employees
for engaging in activities on behalf of Local 212, Inter-
national Brotherhood of Electrical Workers, AFL–
CIO–CLC or any other union.
WE WILL NOT threaten to delay any representation
election in order to discourage your support for the
Union.
WE WILL NOT threaten our employees with unspec-
ified reprisals for engaging in union activities.
WE WILL NOT impliedly threaten our employees
with discharge for engaging in union activities.
WE WILL NOT threaten our employees that their se-
lection of the Union as their collective-bargaining rep-
resentative would be futile because we would never
sign a contract.
WE WILL NOT impliedly threaten our employees re-
garding their support for and activities on behalf of the
Union.
WE WILL NOT inform our employees that they have
‘‘two strikes’’ against them, the Union and OSHA, and
threaten them with more onerous work and working
conditions to discourage their union activities.
WE WILL NOT promulgate and maintain a rule which
prohibits our employees from discussing their wages
and which threatens our employees with termination or
other disciplinary action in order to discourage them
from forming, joining, or assisting the Union or engag-
ing in other concerted activities.
WE WILL NOT impose more onerous working condi-
tions; change working conditions and hours of work;
lay off employees; discharge and refuse to reemploy
employees; issue written warnings to employees; and
issue unfavorable performance reviews to employees
because they joined, supported, or assisted the Union
to discourage employees from engaging in such activi-
ties, and/or because they gave testimony to the Board
and participated in the Board’s processes.
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 our employee Bruce Jones whole for any
loss of earnings he may have suffered as a result of
our unlawful layoffs and discharge, with interest.
WE WILL notify him that we have removed from our
files any reference to his unlawful layoffs, discharge,
written warnings, and performance appraisal and that
they will not be used against him in any way.
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL rescind our rule prohibiting employees
from discussing their wages and threatening termi-
nation or other disciplinary action if they do so.
VIOX SERVICES, INC.