American Steel Line Co.

National Labor Relations Board - Board Decisions

Nov 19, 1980

253 N.L.R.B. 399 (N.L.R.B. 1980)

AMERICAN STIEI. [lNE C()
American Steel Line Co. and Local No. 527, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases
7-CA-17551 and 7-CA-17551(2)
November 19, 1980
DECISION AND ORDER
BY MI MBIERS JNKINS. PN.I I.O, ANI)
TRtULSI)AI I
Upon a charge filed on March 24, 1980,' and
amended on May 16, and another charge filed on
April 17, by Local No. 527, International Brother-
hood of Teamsters, Chauffeurs. Warehousemen and
Helpers of America, herein called the Union, and
duly served on American Steel Line Co., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 7, issued a complaint on May 30,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(5), (4), and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September
11, 1979, following a Board election in Case 7-RC-
15453, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
that commencing on or about January 18, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive by laying off employees and establishing a
system of recalling or reemploying employees
without prior notice to or bargaining with the
Union; and that on or about April 2 Respondent
discharged employee Lee Muscato because he par-
ticipated in filing a charge under the Act.
In a letter to the Regional Director for Region 7,
dated June 18, Respondent's general manager
stated, inter alia:
The American Steel Line Company denies
guilt of any unfair labor practices. We are able
to prove that. On the other hand, the Team-
sters, through some of their officials, are
guilty, not only of unfair practices, but of il-
legal and even criminal actions. We are able to
prove that also. The prosecution of such of-
fences [sic] belongs in the Civil or Criminal
' All dates herein arc in 19I() unless olher is indlialed
253 NLRB No. 46
Courts and are outside the jurisdiction of the
National Labor Relations Board. We. there-
fore, will reserve such proof to be heard in
courts of record and will merely enumerate
some of these misdeeds.
The letter then listed specific charges against the
Teamsters that were not relevant to the complaint
allegations. In response to this communication, in a
letter dated June 27. the Regional Director in-
formed Respondent that the Regional Office was
uncertain whether the aforementioned letter was
intended to constitute Respondent's answer to the
complaint and, if such were the case, the Regional
Office wished to be so notified in writing. Further,
Respondent was advised that its June 18 letter did
not comply with Sections 102.20 and 102.21 of the
Board's Rules and Regulations, Series 8, as amend-
ed, regarding a proper answer. The Regional Di-
rector then extended the date for submission of
such an answer to July 7. In an affidavit dated
August 8. the Regional Director asserted that, as of
that date, no correspondence had been received
from Respondent other than the June 18 letter and,
thus, no proper answer had been filed.
Thereafter, on August 12, counsel for the Gener-
al Counsel filed directly with the Board motions to
transfer the case to the Board and for a judgment
on the pleadings based on Respondent's failure to
file a proper answer as of the date of its motion
under Sections 102.20 and 102.21 of the Board's
Rules and Regulations. Subsequently, on August
18, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's motion should not be
granted, stating that a response should be filed on
or before September 2. Respondent thereafter
timely filed a response which merely reiterated the
allegations contained in its June 18 letter. In part,
the response stated:
The American Steel Line Company has an-
swered all complaints made by the Teamsters
and the National Labor Relations Board by
Certified Mail. In our answers, we filed our
complaints against the Teamsters. If this was
not satisfactory, the National Labor Relations
Board should have sent someone to assist us.
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:
DECISIONS OF NATIONAL LABOR RELATIONS OARD
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.
All allegations in the complaint, if no answer
is filed, or any allegation in the complant 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 admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing served on
Respondent specifically stated that, unless an
answer is filed to the complaint within !0 days
from the service thereof, "all of the allegations in
the Consolidated Complaint shall be deemed to be
admitted true and may be so found by the Board."
As mentioned above, Respondent replied to the
complaint by a letter that in essence accused the
Union and its officials of engaging in various illegal
activities. Respondent was informed by the Region-
al Director that its letter did not comply with the
Board's Rules regarding valid answers and that it
should notify the Regional Office if it wished the
aforementioned letter to constitute its answer. In
addition, the Regional Director extended the time
for submission of a proper answer to July 7. How-
ever, the Regional Director received no further
communication from Respondent. Assuming, ar-
guendo, that the letter was intended to be an
answer to the complaint, it is improper under Sec-
tion 102.20 of the Board's Rules and Regulations
because it does not specifically admit, deny, or ex-
plain each of the allegations in the complaint.
Therefore, as Respondent has not filed an answer
acceptable under the Board's Rules and Regula-
tions within 10 days from the service of the com-
plaint, or within the extended time afforded it by
the Regional Director, and as no good cause for its
failure to do so has been shown, in accordance
with the rule set forth above, the allegations of the
complaint are deemed to be admitted to be true
and are so found to be true. Accordingly, we grant
the General Counsel's Motion for Summary Judg-
ment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RFSPONDENT
Respondent American Steel Line Co., an individ-
ual proprietorship, at all times material herein, has
maintained an office and a place of business at 210
East Broadway Avenue, Muskegon Heights, Michi-
gan, the only facility of Respondent involved
herein. Respondent is, and has been at all times ma-
terial herein, engaged in the fabrication and nonre-
tail sale of steel. During the year ending December
31, 1979, a representative period, Respondent pur-
chased and caused to be transported and delivered
to its Muskegon Heights facility, directly from
points located outside the State of Michigan, steel
and other goods and material valued in excess of
$50,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, 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 jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 527, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
II111. THE UNFAIR LABOR PRACTICES
A. The Unit and the Union's Representative
Status
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees employed by Respondent at its
facility located at 210 East Broadway Avenue,
Muskegon Heights, Michigan; but excluding
all office clerical employees, truckdrivers,
guards and supervisors as defined in the Act.
The Union has been the collective-bargaining
representative of the employees in said unit since
September 11, 1979, when it was certified by the
Board's Regional Director for Region 7 following
a secret-ballot election, and continues to be such
exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
B. The 8(a)(5) and (1) Violations
On or about January 18, Respondent laid off a
substantial number of the employees in the above-
described unit without prior notice to or bargaining
400
AMERICAN STEEL LINE CO.
with the Union. At the same time, and continuing
to date, Respondent, by its agent, James Haan, es-
tablished a system of recalling or reemploying em-
ployees in the unit based upon terms and condi-
tions of employment established without prior
notice to and bargaining with the Union.
Accordingly, we find that Respondent has since
on or about January 18, and at all times thereafter,
refused to bargain collectively with the Union as
the exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
C. The 8(a)(4) and (1) Violation
On or about April 2, Respondent by its agent,
James Haan, discharged employee Lee Muscato be-
cause he had been named as an alleged discrimina-
tee in the charge filed in Case 7-CA-17551. Ac-
cordingly, we find that Respondent did thereby
discriminate, and is discriminating against, employ-
ees for filing charges or giving testimony under the
Act and thereby did engage in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(4) 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 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.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(5), (4), and (1) of the Act, we shall order
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act. We shall, inter alia, require Re-
spondent to bargain collectively, upon request,
with the Union as the exclusive representative of
all employees in the appropriate unit concerning
laying off employees and recalling and reemploy-
ing employees. We shall also order Respondent to
offer all unlawfully laid-off employees and dis-
charged employee Lee Muscato unconditional rein-
statement to their former jobs or, if such jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed. We shall further
order Respondent to make whole each employee
for any loss of pay suffered by him or her as a
result of Respondent's unlawful refusal to bargain,
by paying each a sum of money equal to the
amount he or she would have earned as wages
from the date of layoff until the date Respondent
makes an offer of reinstatement, 2 less net earnings
during said period, and similarly to make whole
employee Lee Muscato for any loss of earnings he
may have suffered by reason of the discrimination
practiced against him. Backpay shall be computed
in the manner set forth in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), with interest thereon to
be computed in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977)." See, gen-
erally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Since Respondent has engaged in unfair labor
practices of a sufficiently egregious nature as to
demonstrate a disregard for its employees' funda-
mental statutory rights, and since Respondent is
also a repeat offender, 4 we shall order Respondent
to cease and desist from infringing in any other
manner upon the rights of employees guaranteed
by Section 7 of the Act. 5
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. American Steel Line Co. is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local No. 527, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees employed by Respondent at its
facility located at 210 East Broadway Avenue,
Muskegon Heights, Michigan; but excluding all
office clerical employees, truckdrivers, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Since September 11, 1979, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
z See WIllman Industries. Inc., 222 NLRB 2(4, 208 (1976), enfd 94
LRRM 2947, 81 LC '13.137 (D C Cir 1977)
3 Member Jenkins would award interest on the backpay in accordance
with the formula set forth in his dissent in Olympic Mledical Corporatlon,
250 NLRB 146 198O)
.4mmerican Steel Line Co, 249 NLRB 380 (1980)
See Ilickmott Fidc. Inc. 242 N RB 761 (1979)
401
I)tCISIO()NS ()F NA'II()NAI. LAB3()R REl.A'IO()NS BO()ARI)
5. By refusing on or about January 18, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, by laying off
employees, and by establishing a system of recall-
ing and reemploying employees without prior
notice to or bargaining with the Union, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
6. By discharging employee Lee Muscato on or
about April 2 because he participated in filing a
charge under the Act, Respondent has engaged in
an unfair labor practice within the meaning of Sec-
tion 8(a)(4) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
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,
American Steel Line Co., Muskegon Heights,
Michigan, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local
No. 527, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive bargaining representative of its
employees in the appropriate unit, by unilaterally
laying off employees and establishing a system of
recalling and reemploying employees. The appro-
priate unit is:
All employees employed by Respondent at its
facility located at 210 East Broadway Avenue,
Muskegon Heights, Michigan; but excluding
all office clerical employees, truckdrivers,
guards and supervisors as defined in the Act.
(b) Discharging or otherwise discriminating
against employees because they participate in filing
charges under the Act.
(c) In any other 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 which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to laying off employees and recalling
and reemploying employees.
(b) Offer all unlawfully laid-off employees and
discharged employee Lee Muscato immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(c) Make all unlawfully laid-off employees and
discharged employee Lee Muscato whole for any
loss of earnings they may have suffered due to
their layoff or discharge in the manner provided in
the section of this Decision entitled "The
Remedy."
(d) 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.
(e) Post at its Muskegon Heights, Michigan, fa-
cility copies of the attached notice marked "Ap-
pendix."' Copies of said notice, on forms provided
by the Regional Director for Region 7, after being
duly signed by Respondent's representative, shall
be posted 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
` I1 the cseilt I hal this ()rdcr is cnilrccd by a Judgment a Uniited
Sitttes (r t l F Appc'ls. Iht sords in Ihc lritce reading "l'osted hb
()rde t t Nalnollral I .abr Rinitions lioi.rd shall rctad l'isted pursu-
.At t Jdgthin ini t. h tilt' IiteL l Stus Curt if Appeals iLf})rcilng il
()rder ,I the N.iliwi1 I abohr Rcelalnits oillJ
APPENDIX
Norici. TO EMIPI.OYFIS
POSI E:D BY ORI)FR OF THFI
NATIONA LABOR RFI.ATIONS BOARD
An Agency of the United States Government
WI: wn.l. Nor refuse to bargain collectively
with Local No. 527, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargain-
ing representative of our employees in the bar-
gaining unit described below, by unilaterally
laying off employees and establishing a system
of recalling and reemploying employees.
402
AMERICAN SEI. L INE C)
WE Will. NOT discharge or otherwise dis-
criminate against employees because they par-
ticipate in filing charges under the Act.
WE Wll.l NO 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.
Wi wil., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to laying
off employees and recalling and reemploying
employees. The bargaining unit is:
All employees employed by the Employer
at its facility located at 210 East Broadway
Avenue, Muskegon Heights, Michigan; but
excluding all office clerical employees,
truckdrivers, guards and supervisors as de-
fined in the Act.
Wi! wil.l offer all unlawfully laid-off em-
ployees and discharged tmployce Lee Muscato
immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or any other rights or
privileges previously enjoyed.
Wu- wl j make all unlawfully laid-off em-
ployees and discharged employee Lee Muscato
whole for any loss of earnings they may have
suffered due to their layoff or discharge, plus
interest.
AMRICAN ST11:1. .INE CO.
4()3