Ancorp National Services, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 513 (N.L.R.B. 1973)

ANCORP NATIONAL SERVICES , INC. 513
Ancorp National Services , Inc., Casco Division and
District # 2, International Union of Electrical,
Radio and Machine Workers , AFL-CIO-CLC.
Case 1-CA-8541
March 20, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon charges filed on August 28, 1972, and
amended September 7, 1972, by District #2,
International Union of Electrical Radio and Ma-
chine Workers, AFL-CIC-CLC, herein called the
Union , and duly served on Ancorp National Serv-
ices, Inc., Casco Division , herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board , by the Regional Director for
Region 1, issued a complaint on October 18, 1972,
against Respondent alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1), (3), and (5) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge , amended charge 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 Respondent:
unlawfully interrogated its employees concerning
their union membership and activities ; threatened
employees with loss of health insurance and other
economic benefits ; threatened employees with dis-
charge and other reprisals if they became or
remained union members ; exercised surveillance
over union meetings and activities ; subjected a union
adherent to unreasonable supervision and work
standards ; discharged employee James McFall for
his union activities ; and refused to bargain with the
Union, which is the exclusive bargaining representa-
tive of its employees in an appropriate unit.
On November 10, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment based upon Respondent 's fail-
ure to file an answer as required by Section 102.20 of
the Board ' s Rules and Regulations , Series 8, as
amended . The Board , on November 28, 1972, 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. On December 12, 1972, Respondent filed
an answer to the notice to show cause,' with an
attached answer to the complaint and notice of
hearing, in which it alleged that the complaint was
inadvertently filed away and no answer was filed
because of the serious illness and consequent absence
of Respondent's vice president who was in charge of
its labor relations. In the attached answer to the
complaint and notice of hearing Respondent denied
certain averments of the complaint and stated that it
had no comment with respect to others. On January
23, 1973, the General Counsel filed a renewed
motion for summary judgment and/or to reject or
strike Respondent's pleadings.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 provides in pertinent part 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 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 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
admitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The complaint served on the Respondent specifi-
cally stated that, unless an answer to the complaint
was filed within 10 days from the service thereof, "all
of the allegations in the complaint shall be deemed to
be admitted to be true and may be so found by the
Board." The complaint issued October 18, 1972. On
November 6, 1972, 16 days after issuance of the
complaint, counsel for the General Counsel tele-
phoned the office of Mr. John Scully,2 Respondent's
vice president in charge of labor relations, and was
informed by the latter's assistant that Mr. Scully was
not in his office but would be in later in the
afternoon. After pointing out the consequences of
' Apparently this pleading was not served on counsel for the General of January 17, 1973.
Counsel, as it has attached to it acknowledgments of receipt thereof only by E The facts concerning these communications are set forth by the
the Union and the attorney for the alleged discnmmatee, and the General General Counsel in the Motion for Summary Judgment and are conceded
Counsel asserts in his renewed motion that it had not been served on him as by the Respondent
202 NLRB No. 71
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's failure to answer the complaint and
noting that it would be the same result that occurred
on May 10, 1972, when the Board granted Summary
Judgment against the Respondent, under similar
circumstances, in a case reported at 196 NLRB No.
147, counsel for the General Counsel left a message
for Mr. Scully and was assured that the latter would
be fully informed on the matter. This telephone
conversation was confirmed in a letter sent on the
same day from the Regional Office by certified mail.
As of November 10, 1972, the date the Motion for
Summary Judgment was served, no communication
from the Respondent had been received.
Subsequent to the issuance of the Notice To Show
Cause Respondent filed an Answer to Notice To
Show Cause and an attached Answer to Complaint
and Notice of Hearing. In its answer to the Notice
To Show Cause, Respondent, in explanation of its
failure to have previously filed an answer asserts, as
noted above, that because of the serious illness and
consequent absence from the office of Vice President
Scully, the complaint herein was inadvertently filed
away and no answer was filed. It further asserts that
no answer was filed on November 6, 1972, the day of
the telephone call from the Board attorney, because
Mr. Scully was working on a limited and part-time
basis on that date. Under these circumstances and
noting that Respondent did not timely request an
extension of time, we do not deem Respondent's
explanations to constitute good cause, within the
meaning of Section 102.20 of the Board's Rules and
Regulations, for failure to file an answer to the
complaint. We shall, accordingly, grant the General
Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, with an
office and place of business in Hyde Park, Massa-
chusetts, is engaged in the preparation and sale of
background music from electrical sound equipment.
During the past year Respondent shipped and
transported products valued in excess of $50,000
from its place of business in interstate commerce
directly to States of the United States other than the
Commonwealth of Massachusetts. During the same
period, Respondent received goods valued in excess
of $50,000 transported to its place of business in
interstate commerce directly from States of the
United States other than the Commonwealth of
Massachusetts.
We find, on the basis of the foregoing that
Respondent is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
District #2, International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC, is a
labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
By refusing, upon request, on or about June 26,
1972, and again on July 10, 1972, and at all times
thereafter, to bargain collectively and in good faith
with the above-named labor organization with
respect to rates of pay, wages, hours, and other terms
and conditions of employment of the employees of
Respondent in the appropriate unit for a collective-
bargaining agreement, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
By discriminating with regard to the hire and
tenure of James McFall, thereby discouraging
membership in the above-named labor organization,
the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
By subjecting employee James McFall to excessive-
ly close and unreasonable supervision and discrimi-
natorily applying work rules and unusual or artificial
work standards against him, threatening employees
with discharge or other reprisals if they became or
remained members of the above-named labor organi-
zation, interrogating its employees concerning their
union membership, activities, and desires, and by the
aforesaid refusal to bargain, the Respondent has
interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7
of the Act and attempted to undermine the Union
and dissipate its majority, thereby committing unfair
labor practices affecting commerce within the mean-
ing of Section 8(a)(1) of the Act.
The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) 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 I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
ANCORP NATIONAL SERVICES, INC.
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
thereof.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5), (3), and (1) 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.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Ancorp National Services, Inc., Casco Division
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. District #2, International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance workers
including installers of Respondent employed at its 56
Glenwood Avenue, Hyde Park, Massachusetts,
location, exclusive of office clerical employees,
professional employees, guards and all supervisors as
defined in Section 2(11) of the Act, constitute a unit
appropriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act.
4. Since May 12, 1972, the above-named labor
organization has been the exclusive representative of
all employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By the acts described in section III, above,
Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act and thereby has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) of
the Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that the Respondent,
Ancorp National Services, Inc., Casco Division,
Hyde Park, Massachusetts, its officers, agents,
successors and assigns, shall:
1. Cease and desist from:
515
(a) Discouraging membership in District #2,
International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO-CLC, or in any other
labor organization of its employees by discharging
employees, or in any other manner, discriminating
against them in regard to hire or tenure of employ-
ment or any term or condition of employment.
(b) Coercively, or otherwise unlawfully, interrogat-
ing its employees as to their union activities, or about
the union activities of other employees.
(c) Threatening its employees with discharge or
economic reprisals because they joined or remained
members of the Union or gave it any assistance or
support.
(d) Subjecting its employees to excessively close
and unreasonable supervision and discriminatonly
applying unusual or artificial work standards against
them because they became or remained members of
the union and in order to discourage union activity
among its employees.
(e) Failing or refusing to bargain collectively with
District #2, International Union of Electrical, Radio
and Machine Workers, AFL-CIO-CLC, as the
exclusive representative of its employees in the
appropriate unit described below. The bargaining
unit is:
All production and maintenance workers, includ-
ing installers of Respondent employed at its 56
Glenwood Avenue, Hyde Park, Massachusetts
location, exclusive of office clerical employees,
professional employees, guards and all supervi-
sors as defined in Section 2(11) of the Act.
(f) In any other manner interferring with, restrain-
ing, or coercing employees in the exercise of their
rights to self-organization, to form labor organiza-
tions, to join or assist the above-named Union, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose
of collective bargaining or mutual aid or protection,
and to refrain from any and all of such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to James McFall immediate and full
reinstatement to his former or substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges.
(b) Make whole James McFall in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289
with interest calculated as set forth in Isis Plumbing
& Heating Co., 138 NLRB 716.
(c) 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
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Upon request, bargain collectively with District
#2, International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CLC, with respect to
rates of pay, wages, hours, and other terms and
conditions of employment for a collective-bargaining
agreement, and if an understanding is reached,
embody such understanding in a signed agreement.
(e) Post at its facility in Hyde Park, Massachusetts,
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the
Regional Director for Region 1, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 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 discourage membership in
District # 2, International Union of Electrical,
Radio and Machine Workers, AFL-CIO-CLC,
or in any other labor organization of our
employees or attempt to undermine or destroy its
majority representation among our employees by
discharging any of our employees , or by discrimi-
nating against them in any other manner in
regard to the hire or tenure, or any other term or
condition of employment.
WE WILL NOT coercively , or otherwise unlaw-
fully question employees as to their union
affiliations or activities.
WE WILL NOT threaten our employees with
discharge or economic reprisals - because they
joined or remained members of the Union or gave
it any assistance or support.
WE WILL NOT subject our employees to exces-
sively close and unreasonable supervision or
discriminatorily apply unusual and artificial work
standards against them because they became or
remained members of the Union or gave it any
assistance or support.
WE WILL offer James McFall immediate and
full reinstatement to his former or substantially
equivalent position without prejudice to his
seniority or other rights and privileges, and make
him whole for any loss of pay suffered as a result
of discrimination against him.
WE WILL NOT refuse to bargain collectively
with District #2, International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO-
CLC, as the exclusive representative of our
employees in the appropriate unit described
below. The bargaining unit is:
All production and maintenance workers,
including installers of Respondent employed
at its 56 Glenwood Avenue, Hyde Park,
Massachusetts location, exclusive of office
clerical employees, professional employees,
guards and all supervisors as defined in
Section 2(11) of the Act.
WE WILL bargain with the above-named Union
with respect to rates of pay, wages, hours, and
other terms and conditions of employment for a
collective-bargaining agreement and, if an under-
standing is reached, embody such understanding
in a signed agreement.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist the
above-named Union, or any other labor organiza-
tion, to bargain collectively through representa-
tives of their own choosing, and to engage in
other concerted activities for the purposes of
collective bargaining or other mutual aid or
protection, or to refrain from any and all such
activities.
ANCORP NATIONAL
SERVICES, INC., CASCO
DIVISION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
ANCORP NATIONAL SERVICES, INC 517
This notice must remain posted for 60 consecutive ance with its provisions may be directed to the
days from the date of posting and must not be Board's Office, Bulfinch Building, Seventh Floor, 15
altered, defaced, or covered by any other material. New Chardon Street, Boston, Massachusetts 02114,
Any questions concerning this notice or compli- Telephone 617-223-3345.