Auto West Collision

National Labor Relations Board - Board Decisions

Nov 24, 1998

327 N.L.R.B. 37 (N.L.R.B. 1998)

327 NLRB No. 37
1
NOTICE: This opinion is subject to formal revision before publication in the
Board volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Auto West Collision, Auto Collision Services Centers
Corporation and Serramonte Auto Plaza Body
Shop, Inc. and International Association of Ma-
chinists & Aerospace Workers, District Lodge
190, Local Lodge 1414, AFL–CIO and Javier
Hernandez. Cases 20–CA–28039 and 20-–CA–
28049
November 24, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
Upon charges filed on September 24 and 29, 1997, the
Acting General Counsel of the National Labor Relations
Board issued an amended consolidated complaint on
February 18, 1998, against Auto West Collision, Auto
Collision Services Centers Corporation and Serramonte
Auto Plaza Body Shop, Inc., the Respondent, alleging
that it has violated Section 8(a)(1) and (3) of the National
Labor Relations Act. The Respondent filed an answer.
Thereafter, on March 10, 1998, the Respondent en-
tered into an informal settlement agreement which was
approved by the Regional Director on March 13. The
settlement agreement provided, inter alia, that the Re-
spondent would pay backpay in the total amount of
$49,400.60, plus interest, to the five discriminatees. The
settlement provided that this amount would be paid in ten
installment payments of $4940.06 each, which amount
would be apportioned among the five discriminatees as
set forth in the settlement. In addition, the settlment pro-
vided that:
In consideration of the Board granting a time payment
schedule, Respondent further agrees that, in the event
of any non-compliance by failure to make required
payments by certified or cashier's check, on the dates
specified, or to cure any such failure within fourteen
days of the specified payment date, the total amount of
backpay shall become immediately due and payable.
Thereupon, the Regional Director for the National La-
bor Relations Board may give notice of intent to file a
motion for summary judgment seeking findings of fact
and conclusions of law consistent with the Amended
Consolidated Complaint (Complaint) and seeking a full
remedy. Respondent agrees that after 14 days notice
from the Regional Director of the National Labor Re-
lations Board, on such motion for summary judgment
by the General Counsel, Respondent's Answer to the
instant Complaint shall be considered withdrawn.
Thereupon, the Board shall issue an order requiring Re-
spondent to show cause why said Motion of the Gen-
eral Counsel should not be granted. The Board may,
without necessity of trial, find all allegations of the
Complaint to be true, and make findings of fact and
conclusions of law consistent with those allegations
adverse to Respondent on all issues raised by the
pleadings. The Board may also issue an Order provid-
ing full remedy, including immediate payment of back-
pay that has not yet been paid, plus any interest that has
accrued on the unpaid backpay and including a reme-
dial bargaining order if requested by the General Coun-
sel. The parties further agree that a Board Order and
U.S. Court of Appeals Judgment may be entered
thereon ex parte.
The Respondent remitted the first five installment
payments, but did not remit the sixth and seventh in-
stallment payments that were due on July 24 and August
24, 1998, respectively. By letter dated August 25, the
Regional Director advised Respondent's counsel of the
delinquency and that a Motion for Summary Judgment
would be filed if the Respondent did not cure the delin-
quency by making the required payments. On September
9, counsel for the Acting General Counsel spoke with
Respondent's counsel and again advised him that a mo-
tion for summary judgment would be filed if the pay-
ments were not received. Nevertheless, the Respondent
failed to make any of the required payments since its
fifth installment in July.
On October 16, 1998, the Acting General Counsel
filed the instant Motion for Summary Judgment with the
Board. Pursuant to the terms of the settlement agreement,
the Acting General Counsel requests that the Respon-
dent's answer to the amended consolidated complaint be
considered withdrawn and that the Board issue an order
requiring the Respondent to pay the total remaining
amount of backpay due each of the five discriminatees
under the terms of the settlement, and to also comply
with certain other provisions of the settlement which
have not been satisfied.1
On October 19, 1998, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.

1In addition to the make-whole (backpay) relief, the settlement also
required the Respondent to reinstate discriminatee Victor Nieves (the
other four discriminatees waived reinstatement), to remove from its
files any reference to the discharges, and to post a notice. The Acting
General Counsel asserts that Respondent has complied with all of the
nonmake-whole provisions of the settlement except for the provisions
requiring Respondent to notify the discriminatees and the Region that it
has removed any reference to the discharges from its files. The Acting
General Counsel therefore requests that the Respondent be ordered to
comply with the removal provisions, but does not request that the
Board order the Respondent to comply with the remaining nonmake-
whole provisions of the settlement, or that it include in the order any of
the affirmative provisions normally included in Board orders remedy-
ing allegations of the type alleged in the amended consolidated com-
plaint. Nor has the Acting General Counsel requested a remedial bar-
gaining order pursuant to the terms of the settlement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board's Rules and
Regulations provide 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. In addition, the amended consolidated com-
plaint affirmatively notes that unless an answer is filed
within 14 days of service, all the allegations in the
amended consolidated complaint will be considered ad-
mitted. Although, the Respondent initially filed an an-
swer to the amended consolidated complaint, it subse-
quently entered into a settlement agreement which pro-
vided for the withdrawal of that answer in the event of
noncompliance with the settlement, and such noncompli-
ance has occurred. We therefore find that the Respon-
dent's answer has been withdrawn by the terms of the
settlement agreement, and that, as further provided in the
settlement, all the allegations of the amended consoli-
dated complaint are true.2
Accordingly, we grant the Acting General Counsel's
Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Auto Collision Services Centers
Corporation and Serramonte Auto Plaza Body Shop, Inc.,
corporations, with an office and place of business in
Colma, California, have been engaged in the retail repair
and servicing of automobiles.
At all material times, Auto West Collision, a business
entity, with an office and place of business in Colma,
California, has also been engaged in the retail repair and
servicing of automobiles.
At all material times, Auto West Collision, Auto Colli-
sion Services Centers Corporation and Serramonte Auto
Plaza Body Shop, Inc., have been affiliated business en-
terprises with common officers, ownership, directors,
management, and supervision; have formulated and ad-
ministered a common labor policy; have shared common
premises and facilities; have provided services for and
made sales to each other; and have interchanged person-
nel with each other.
Based on the operations described above, Auto West
Collision, Auto Collision Services Centers Corporation
and Serramonte Auto Plaza Body Shop, Inc., are a single
employer within the meaning of the Act.
During the calendar year ending December 31, 1997,
the Respondent, in conducting its business operations
described above, derived gross revenues in excess of
$500,000, and purchased and received goods valued in

2See U-Bee, Ltd., 315 NLRB 667 (1994).
excess of $5000 which originated from points outside the
State of California.
During the calendar year ending December 31, 1997,
Serramonte Auto Plaza Body Shop, Inc. (Serramonte
Auto), in conducting its business operations described
above, derived gross revenues in excess of $500,000, and
purchased and received goods valued in excess of $5000
which originated from points outside the State of Cali-
fornia.
During the calendar year ending December 31, 1997,
Auto West Collision (Auto West), in conducting its busi-
ness operations described above, derived gross revenues
in excess of $500,000, and purchased and received goods
valued in excess of $5000 which originated from points
outside the State of California.
We find that the Respondent, Serramonte Auto, and
Auto West are employers 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
The Respondent and/or Serramonte Auto and/or Auto
West, at the Colma facility:
About September 25, 1997, interrogated its employees
about their union activities and the union activities of
other employees and threatened to discharge its em-
ployee for refusing to reveal what had occurred at the
Union meeting.
About September 30, 1997, solicited its employees’
grievances and promised its employees medical benefits
if the employees rejected the Union as their bargaining
representative, created an impression among its employ-
ees that their union representatives were under surveil-
lance, and informed its employees that it would be futile
for them to select the Union as their bargaining repre-
sentative by telling employees that the Respondent
and/or Auto West would not have a union at its facility.
About the first week of October 1997, promised its
employees medical benefits, accident/life insurance and
bonuses if the employees rejected the Union as their bar-
gaining representative.
About the dates set forth opposite their names, dis-
charged the employees named below because they
formed and assisted the Union and engaged in concerted
activities and to discourage employees from engaging in
these activities:
Victor Nieves September 23, 1997
Cesar Rosales September 23, 1997
Javier Hernandez September 24, 1997
Gerardo Ortiz September 24, 1997
Jaime Paredes September 25, 1997
CONCLUSIONS OF LAW
By the acts and conduct described above, the Respon-
dent and/or Serramonte Auto and/or Auto West has been
AUTO WEST COLLISION 3
interfering with, restraining, and coercing employees in
the exercise of the rights guaranteeed in Section 7 of the
Act in violation of Section 8(a)(1) of the Act. In addi-
tion, by discharging the named employees the Respon-
dent has been discriminating in regard to the hire and
tenure, or terms, or conditions of employment of its em-
ployees, thereby discouraging membership in a labor
organization in violation of Section 8(a)(3) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, in accor-
dance with the parties’ settlement agreement and the
Acting General Counsel’s request in his motion for
summary judgment,3 we shall order the Respondent to:
make the discriminatees whole by paying them the re-
maining amounts due under the terms of the settlement,
plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 11173 (1987); remove from its files
any reference to the discharges of the discriminatees; and
notify the discriminatees and the Regional Director that
its files have been removed.
ORDER
The National Labor Relations Board orders that the
Respondent, Auto West Collision, Auto Collision Serv-
ices Centers Corporation, and Serramonte Auto Plaza
Body Shop, Inc., Colma, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities
and the union activities of other employees.
(b) Threatening to discharge employees for refusing to
reveal what had occurred at the union meeting.
(c) Soliciting employees’ grievances and promising
them medical benefits if the employees rejected the Un-
ion as their bargaining representative.
(d) Creating an impression among employees that their
union activities were under surveillance.
(e) Informing the employees that it would be futile for
them to select the Union as their bargaining representa-
tive by telling them that the Respondent and/or Ser-
ramonte Auto and/or Auto West would not have a union
at its facility.

3See fn. 1, supra.
(f) Promising employees medical benefits, acci-
dent/life insurance and bonuses if the employees rejected
the Union as their bargaining representative.
(g) Discharging employees because they formed and
assisted the Union and engaged in concerted activities,
and to discourage employees from engaging in these ac-
tivities.
(h) 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) Make Victor Nieves, Cesar Rosales, Javier Her-
nandez, Gerardo Ortiz, and Jaime Paredes whole by
making the following payments, plus interest, in the
manner set forth in the remedy section of this decision:
Javier Hernandez $3283.45
Victor Nieves 5428.20
Gerardo Ortiz 5428.20
Jaime Paredes 3441.10
Cesar Rosales 7119.35
TOTAL $24,700.30
(b) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful dis-
charges of Hernandez, Nieves, Ortiz, Paredes, and
Rosales, and WE WILL, within 3 days thereafter notify
them and the Regional Director for Region 20 in writing
that this has been done and that the discharges will not be
used against the discriminatees in any way.
Dated, Washington, D.C. November 24, 1998
Sarah M. Fox, Member
Peter J. Hurtgen, Member
J. Robert Brame III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD