Brandis Aircraft

National Labor Relations Board - Board Decisions

Mar 7, 1972

195 N.L.R.B. 711 (N.L.R.B. 1972)

BRANDIS AIRCRAFT 711
Robert Brandis and John Brandis , a Partnership d/b/a
Brandis Aircraft and Joseph J. Shimkus, Jr., III.
Case 38-CA-1251
March 7, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Upon a charge filed on August 18, 1971, by Joseph
J. Shimkus, Jr., III, herein called the Charging Party,
and duly served on Robert Brandis and John Brandis,
a Partnership d/b/a Brandis Aircraft, herein called the
Respondent, the General Counsel of the National La-
bor Relations Board, by the Office-in-Charge for Subre-
gion 38, issued a complaint on October 14, 1971,
against Respondent, alleging that Respondent had en-
gaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before a Trial Exam-
iner were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that, on various dates be-
tween July 29 and the end of August 1971, the Re-
spondent (1) interrogated its employees concerning
their own and other employees' union membership,
activities, and desires; (2) solicited its employees to sign
a petition to the effect that said employees did not want
the Laborers International Union of North America,
AFL-CIO, herein called the Union; (3) promised its
employees better working conditions, such as better
ventilation in working areas, and less mandatory over-
time work in order to discourage their support of or
assistance to the Union; (4) threatened to discharge
employees who refused to sign a petition which rejected
the Union or who signed a petition supporting the
Union; (5) threatened to close its shop if its employees
selected the Union as their collective-bargaining repre-
sentative; and (6) told its employees that it would rein-
state discharged employees who signed a petition re-
jecting the Union. By the aforesaid acts, described
above, the complaint alleges that the Respondent has
violated Section 8(a)(1) of the Act.
The complaint also alleges in substance that on or
about July 29, 1971, the Respondent terminated the
employment of employee Joseph J. Shimkus, Jr., III,
the Charging Party, and, on or about July 30, it ter-
minated the employment of its employees Anthony J.
Annerino, Chris S. Croxton, Vincent K. Houston,
Larry A. Robinson, Dennis W. Trader, and Gary K.
Wooldridge, and has' refused, and, continues to refuse,
to reinstate them, because such employees engaged in
union activity or other concerted activity protected un-
der the Act. By the acts described in this paragraph, the
195 NLRB No. 128
complaint alleges that the Respondent violated Section
8(a)(3) and (1) of the Act.
On November 3, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, alleging that the Respondent has
failed to file an answer as required by the Board's Rules
and Regulations and moving that the allegations of the
complaint, which are not denied, be deemed true.
Subsequently, on November 5, 1971, the Board issued
a Notice To Show Cause on or before November 19,
1971, why the General Counsel's Motion for Summary
Judgment should not be granted. No timely response
was filed. Respondent thereafter, on December 1, 1971,
filed a motion for leave to plead to the complaint and
for transfer of the instant proceeding to Subregion 38
for hearing. On the same date Respondent also filed a
so-called answer admitting in part, and denying in part,
the allegations of the complaint. Counsel for the Gen-
eral Counsel filed a telegram and a memorandum in
opposition to Respondent's motion.
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:
RULING ON THE MOTION FOR SUMMARY
JUDGMENT
Section 102.20 of the Board's Rules and Regulations,
Series 8, as amended, provides 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 allega-
tion in the complaint not specifically denied or
explained in an answer filed; unless the respondent
shall state in the answer that he is without knowl-
edge, 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 the
Respondent specifically, stated that unless an answer
was filed to the, complaint within 10 days from the
service thereof "all of the allegations in said complaint
shall be deemed to be admitted to be true and may be
so found by,the Board." The complaint was served on
the Respondent on or about October 15, 1971. After
the time for filing the answer expired, after the General
Counsel had filed the instant Motion for Summary
Judgment on: November 3, and after the time had ex-
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pired for responding to the Board's Notice To Show
Cause of November 5, the Respondent, on December
1, 1971, filed its so-called answer and motion for leave
to plead.
In its motion, the Respondent states that, while
aware of the inquiry being made by the Board's Subre-
gion 38 in the months following July 1971, it was una-
ware of the quasi-judicial nature of this proceeding
until so advised by its attorney in mid-November, and
further states that its failure to plead was due to misun-
derstanding rather than to a deliberate refusal to an-
swer . It alleges in general terms that it has a valid
defense on the facts and jurisdiction and is desirous of
having a hearing on the charges here, but it does not
indicate what its defense is.
In his opposition to the Respondent 's motion, coun-
sel for the General Counsel states that on November 1,
1971, he called Mr. John Brandis, copartner of Re-
spondent, and informed him that the U.S. Post Office
had notified the Subregion that, on two occasions, the
Respondent refused to claim the registered letter con-
taining the complaint and notice of hearing . He a,lvised
Mr. Brandis that the time for filing the answer had
expired and asked whether the Respondent intended to
file an answer . He also explained to Mr . Brandis the
legal effects of a failure to file and answer, the alterna-
tives of settlement and litigation , and the right to obtain
counsel or to litigate the matter personally. On the
same day, counsel for the General Counsel sent the
Respondent a letter confirming the telephone call and
enclosing a copy of the complaint and notice of hearing
previously served on the Respondent. In addition, he
sent a copy of the Motion for Summary Judgment to
the Respondent by certified mail. The Respondent
refused it. On November 22, 1971, a subregion group
supervisor sent a copy of the Motion for Summary
Judgment by regular mail. The Respondent made no
timely response to the complaint or to the Motion for
Summary Judgment , and on December 1 it belatedly
filed its motion and answer with the Board in Washing-
ton.
We have thoroughly considered the Respondent's
explanation for its failure to file an answer within 10
days of service of the complaint as well as the allega-
tions of counsel for the General Counsel in his opposi-
tion-allegations to which the Respondent has made
no response and which, therefore, stand uncontrov-
erted. Under all the circumstances, we are of the view
and find that the Respondent 's explanation is not suffi-
cient to justify failure to file an answer on time and,
therefore , does not constitute "good cause" under Sec-
tion 102.20 of the Board 's Rules and Regulations. Ac-
cordingly, we deny the Respondent's belated motion to
plead to the complaint and to file an answer. As no
answer has been filed, the allegations of the complaint,
in accordance with the aforesaid rules, are deemed to
be admitted to be true and are so found to be true. We
shall, accordingly, grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a partnership of Robert Brandis
and John Brandin doing business under the trade name
of Brandis Aircraft, with office and place of business at
Capitol Airport in Springfield , Illinois , is engaged in
the business of refinishing , designing , and repairing air-
craft. Annually, in the course of its business, it per-
formed services valued in excess of $50,000 in States
other than Illinois, and also for customers whose places
of business are outside Illinois ; and it furnished services
valued in excess of $50,000 to five customers which
meet the Board's direct and indirect, inflow or outflow,
jurisdictional standards. Annually, the Respondent
purchased, transferred, and delivered to its Capitol
Airport facilities paint and other goods and materials
valued in excess of $50,000 which were received di-
rectly from outside Illinois , and also more than $50,000
in paint and other goods and materials which origi-
nated outside Illinois and were received from other
enterprises. During the past 12 months, the Respond-
ent sold and distributed goods and services, the gross
value of which exceeded $500,000.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Laborers International Union of North America,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1) Violations
At various dates between July 29 and late August
1971, the Respondent (1) interrogated its employees
concerning their own and other employees' union
membership, activities, and desires; (2) solicited its em-
ployees to sign a petition to the effect that said em-
ployees did not want the Union; (3) promised its em-
ployees better working conditions, such as better
ventilation in working areas, and less mandatory over-
time work in order to discourage their support of or
assistance to the Union; (4) threatened to discharge
employees who refused to sign a petition which rejected
BRANDIS AIRCRAFT 713
the Union or who signed a petition supporting the
Union; (5) threatened to close its shop if its employees
selected the Union as their collective-bargaining repre-
sentative; and (6) told its employees that it would rein-
state discharged employees who signed a petition re-
jecting the Union.
Accordingly, we find that, by the aforesaid interroga-
tion, solicitation, promises, threats, and statements to
employees, the Respondent interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed under Section 7 of the Act and that, by such
conduct, the Respondent thereby engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
B. The 8(a)(3) and (1) Violations
On or about July 29 and 30, 1971, the Respondent
terminated the employment of employees Joseph J.
Shimkus, Jr., III, the Charging Party, Anthony J. An-
nerino, Chris S. Croxton, Vincent K. Houston, Larry
A. Robinson, Dennis W. Trader, and Gary K. Wool-
dridge and at all times since has failed and refused to,
and continues to fail and refuse to, reinstate said em-
ployees, because they engaged in union activity and
other concerted activity protected under the Act.
Accordingly, we find that by the Respondent's afore-
said termination of employees Joseph J. Shimkus, Jr.,
III, the Charging Party, Anthony J. Annerino, Chris S.
Croxton, Vincent K. Houston, Larry A. Robinson,
Dennis W. Trader, and Gary K. Wooldridge and by its
failure and refusal to reinstate said employees, the Re-
spondent discriminated in regard to the terms and con-
ditions of employment of its employees, thereby dis-
couraging membership in a labor organization and that
by such conduct the Respondent engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(3) 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 operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the.
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act, we shall order that
it cease and desist therefrom, and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily terminat-
ing employees Joseph J. Shimkus, Jr., III, the Charging
Party, Anthony J. Annerino, Chris S. Croxton, Vincent
K. Houston, Larry A. Robinson, Dennis W. Trader,
and Gary K. Wooldridge and discriminatorily failing
and refusing to reinstate them, we shall order that the
Respondent offer each of them immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privi-
leges, and make each of them whole for any loss of
earnings each may have suffered by reason of such
discrimination, by payment of a sum of money equal to
that which each normally would have earned as wages
from the date of discharge to the date of said offer of
reinstatement, less his net earnings during such period,
with backpay computed on a quarterly basis in the
manner established by the Board in F W. Woolworth
Company, 90 NLRB 289, 294, and with interest
thereon as prescribed by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716.
As the unfair labor practices committed by the Re-
spondent were of a character which go to the very heart
of the Act, we shall order the Respondent to cease and
desist therefrom and to cease and desist from infringing
in any other manner upon the rights of employees guar-
anteed by Section 7 of the Act.
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Robert Brandis and John Brandis, a Partnership
d/b/a Brandis Aircraft, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Laborers International Union of North America,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed in
Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure
of employment of employees, thereby discouraging
membership in or activities on behalf of a labor organi-
zation, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the
Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National` Labor Relations
Board hereby orders that Respondent, Robert Brandis
and John Brandis, a Partnership d/b/a Brandis Air-
craft, its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on be-
half of, Laborers International Union of North
America, AFL-CIO, or in any other labor organiza-
tion, by terminating and failing or refusing to reinstate
or otherwise discriminating in regard to the hire or
tenure of employment or any terms or conditions of
employment of any of its employees.
(b) Interrogating its employees concerning their own
and other employees' union membership , activities,
and desires.
(c) Soliciting its employees to sign a petition to the
effect that said employees did not want the Union.
(d) Promising its employees better working condi-
tions, such as better , ventilation in working areas, and
less mandatory overtime work in order to discourage
their support of or assistance to the Union.
(e) Threatening to discharge employees who refused
to sign a petition which rejected the Union or who
signed a petition supporting the Union.
(f) Threatening to, close its shop if its employees
selected the Union as their collective-bargaining repre-
sentative.
(g) Telling its employees that it would reinstate dis-
charged employees who signed a petition rejecting the
Union.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer to Joseph J. Shimkus, Jr., III, the Charging
Party, Anthony J. Annerino, Chris S. Croxton, Vincent
K. Houston, Larry A. Robinson, Dennis W. Trader,
and Gary K. Wooldridge immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privi-
leges.
(b) Notify immediately the above-named individuals,
if presently serving in the Armed Forces of the United
States , of the right to full reinstatement, upon applica-
tion after discharge from the Armed Forces, in accord-
ance with the Selective Service Act and the Universal
Military Training and Service Act.
(c) Make 'whole Jospeh J. Shimkus, Jr., III, the
Charging Party, Anthony J. Annerino, Chris S. Crox-
ton, Vincent K. Houston, Larry A. Robinson,, Dennis
W. Trader, and Gary K. Wooldridge for any loss of pay
each of them may have suffered by reason of the dis-
crimination against him by payment to each of them of
a sum of money equal to the amount each normally
would have earned as wages from the date of his termi-
nation to the date of the Respondent's offer of reinstate-
ment in the manner set forth in the section entitled
"The Remedy."
(d) Preserve and, upon 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 amount of backpay
due under the terms of this Order.
(e) Post at its office and place of business at Capitol
Airport in Springfield, Illinois, copies of the attached
notice marked "Appendix."' Copies of said notice, on
forms provided by the Officer-in-Charge for Subregion
38, after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60, consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Officer-in-Charge for Subregion 38, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
' 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 RELATIONS BOARD" shall be changed to read
"POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES
COURT OF APPEALS ENFORCING AN ORDER OF THE NA-
TIONAL LABOR RELATIONS BOARD "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor Relations
Board has found that we violated the law and has or-
dered us to post this notice.
WE WILL NOT discourage membership in, or
activities on behalf of, Laborers International
Union of North America , AFL-CIO, or in any
other labor organization , by terminating and fail-
ing or refusing to reinstate or otherwise dis-
criminating in regard to the hire or tenure of em-
ployment or any terms or conditions of
employment of any of our employees.
BRANDIS AIRCRAFT 715
WE WILL NOT interrogate employees concern-
ing their own and other employees ' union mem-
bership , activities , and desires.
WE WILL NOT solicit employees to sign a peti-
tion to the effect that said employees do not want
the Laborers International Union of North
America, AFL-CIO.
WE WILL NOT promise employees better work-
ing conditions , such as better ventilation in work-
ing areas, and less mandatory overtime work in
order to discourage their support of or assistance
to the Union.
WE WILL NOT threaten to discharge employees
who refuse to sign a petition which rejects the
Union or who sign a petition supporting the
Union.
WE WILL NOT threaten to close shop if em-
ployees select the Union as their collective-bar-
gaining representative.
WE WILL NOT tell employees that we will rein-
state discharged employees who sign a petition
rejecting the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them in Section 7 of the
Act.
Since the Board found that we violated the law
when we terminated the employment of Joseph J.
Shimkus, Jr., III , Anthony J. Annerino, Chris S.
Croxton , Vincent K. Houston, Larry A. Robin-
son, Dennis W. Trader and Gary K. Wooldridge,
we will- offer them their jobs back and we will pay
them for any loss of pay they may have suffered
because we terminated their employment.
You are free to become and remain members of La-
borers International Union of North America, AFL-
CIO, or any other labor organization.
ROBERT BRANDIS AND
JOHN BRANDIS, A
PARTNERSHIP D/B/A
BRANDIS AIRCRAFT
(Employer)
Dated By
(Representative) (Title)
WE WILL notify immediately the above- named in-
dividuals , if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application - after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced. by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office; Savings Center Tower, 10th Floor, 411 Hamil-
ton Boulevard, Peoria, Illinois 61602, Telephone 309-
673-9061, Ext. 282.