Bravo Mechanical

National Labor Relations Board - Board Decisions

Dec 21, 1990

300 N.L.R.B. 1019 (N.L.R.B. 1990)

1019
300 NLRB No. 143
BRAVO MECHANICAL
1 By letter to the Board dated October 9, 1990, and served on the parties,
counsel for the General Counsel corrected the Motion for Summary Judgment
in the spelling of five of the alleged discriminatees’ names and substituted an
exhibit indicating the correct date the charge and amended charge were served
on the Respondent.
2 See Control & Electrical System Specialists, 299 NLRB No. 92 (Aug. 29,
1990); Protection Sprinkler Systems, 295 NLRB 1072 (1989); Binney’s Cast-
ing Co., 285 NLRB 1095 (1987).
3 The complaint also alleges that on or about December 12, 1989, the Union
requested the Respondent to recognize and bargain with it as the exclusive
representative of the unit, and that the Respondent on that same date refused
to do so. In the absence of an answer, we find these allegations to be admitted.
The complaint further alleges that by refusing to recognize and bargain with
the Union, the Respondent violated Sec. 8(a)(1) and (5) of the Act. Because
this alleged violation is tied to the bargaining order remedy, we shall leave
its disposition to the judge.
Bravo Mechanical, Inc. and Sheet Metal Workers
International Association, Local Union No. 19,
AFL–CIO. Case 4–CA–18520
December 21, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
Upon a charge filed by the Union on December 15,
1989, and amended January 17, 1990, the General
Counsel of the National Labor Relations Board issued
a complaint on February 28, 1990, against the Re-
spondent, alleging that it has violated Section 8(a)(1),
(3), and (5) of the National Labor Relations Act. Al-
though properly served copies of the charge, amended
charge, and complaint, the Respondent has failed to
file an answer.
On October 5, 1990, the General Counsel filed a
Motion for Summary Judgment, with exhibits at-
tached.1 On October 11, 1990, 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 response. The allega-
tions in the motion are therefore undisputed.
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 complaint states that unless an answer
is filed within 14 days of service, ‘‘all of the allega-
tions in the Complaint shall be deemed to be admitted
to be true and may be so found by the Board.’’ As
noted above, the Respondent has failed to file an an-
swer to the complaint, and has failed to file a response
to the Notice to Show Cause.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment insofar as
the complaint alleges that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging and
thereafter failing and refusing to reinstate Howard Sto-
ver Sr., Earl Stover, Howard Stover Jr., Bruce Adams,
Vincent Bilotta, Pamela Jackson, Mark Stover, Scott
Stover, and Frank Wakeling.
The complaint further alleges that these unfair labor
practices are so serious and substantial in character that
the possibility of erasing the effects of these unfair
labor practices and of conducting a fair election by the
use of traditional remedies is slight, and that the em-
ployees’ sentiments regarding representation having
been expressed through authorization cards, would, on
balance, be protected better by issuance of a bar-
gaining order than by traditional remedies alone. In de-
termining whether a bargaining order is appropriate to
remedy an employer’s misconduct, the Board examines
the nature and pervasiveness of the employer’s unfair
labor practices. NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). In weighing a violation’s pervasiveness,
relevant considerations include ‘‘the number of em-
ployees directly affected by the violation, the size of
the unit, the extent of dissemination among the work
force, and the identity of the perpetrator of the unfair
labor practice.’’ Michigan Expediting Service, 282
NLRB 210, 211 (1986).
The complaint in this case alleges that the Respond-
ent unlawfully discharged nine employees. The com-
plaint further alleges in conclusionary terms that such
unfair labor practices preclude the holding of a fair
election and that therefore a bargaining order is war-
ranted. Although the unfair labor practices here are se-
rious in nature, the complaint does not allege sufficient
facts to enable the Board to evaluate the pervasiveness
of the violations. For example, the complaint does not
allege the size of the unit or the extent of dissemina-
tion, if any, of the violations among the employees not
directly affected by them. Accordingly, we deny the
General Counsel’s Motion for Summary Judgment in-
sofar as it alleges that a bargaining order is appropriate
and that the Respondent therefore violated Section
8(a)(5) and (1) of the Act.2 We shall remand the case
for a hearing before an administrative law judge on the
issue of whether a bargaining order is an appropriate
remedy under the circumstances of this case.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Pennsylvania corporation en-
gaged in the operation of an HVAC installation and
service shop and a sheet metal fabrication shop located
in Chester, Pennsylvania. During the year preceding is-
suance of the complaint, the Respondent, in the course
and conduct of its business operations, purchased and
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
received at its Chester shop products, goods, and mate-
rials valued in excess of $50,000 from other enter-
prises located within the Commonwealth of Pennsyl-
vania, each of which other enterprises had received the
products, goods, and materials directly from points
outside the Commonwealth of Pennsylvania. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 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
About the dates listed below, the Respondent dis-
charged the employees named below and at all times
since these dates the Respondent has failed and refused
to reinstate these employees to their former or substan-
tially equivalent positions of employment:
Howard Stover Sr. December 11, 1989
Earl Stover December 11, 1989
Howard Stover Jr. December 11, 1989
Bruce Adams December 11, 1989
Vincent Bilotta December 11, 1989
Pamela Jackson December 11, 1989
Mark Stover January 2, 1990
Scott Stover January 2, 1990
Frank Wakeling January 2, 1990
The Respondent engaged in, and is engaging in, the
conduct described above because its employees sup-
ported or assisted the Union.
Accordingly, we find that the Respondent has dis-
criminated, and is discriminating, in regard to the hire
or tenure or terms or conditions of employment of its
employees, thereby discouraging membership in a
labor organization, and the Respondent thereby has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
CONCLUSION OF LAW
By discharging on December 11, 1989, and there-
after failing and refusing to reinstate employees How-
ard Stover Sr., Earl Stover, Howard Stover Jr., Bruce
Adams, Vincent Bilotta, and Pamela Jackson; and by
discharging on January 2, 1990, and thereafter failing
and refusing to reinstate employees Mark Stover, Scott
Stover, and Frank Wakeling, the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning Section 8(a)(1) and (3) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act, we shall order it to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. We shall
order the Respondent to offer employees Howard Sto-
ver Sr., Earl Stover, Howard Stover Jr., Bruce Adams,
Vincent Bilotta, Pamela Jackson, Mark Stover, Scott
Stover, and Frank Wakeling immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights or privi-
leges previously enjoyed, and to make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them. Backpay
shall be computed as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). We also shall
order the Respondent to remove from its files any ref-
erences to the unlawful discharges of the above-named
employees and to notify them in writing that this has
been done and that the discharges will not be used
against them in any way. Finally, as noted above, we
shall also remand this case for a hearing on the limited
issue of whether a bargaining order is an appropriate
remedy under the circumstances of this case.
ORDER
The National Labor Relations Board orders that the
Respondent, Bravo Mechanical, Inc., Chester, Penn-
sylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging and thereafter failing and refusing to
reinstate employees, or otherwise discriminating
against employees, because they supported or assisted
the Sheet Metal Workers International Association,
Local Union No. 19, AFL–CIO.
(b) 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) Offer Howard Stover Sr., Earl Stover, Howard
Stover Jr., Bruce Adams, Vincent Bilotta, Pamela
Jackson, Mark Stover, Scott Stover, and Frank
Wakeling immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights or privileges previously
enjoyed, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of this decision.
(b) Remove from its files any references to the un-
lawful discharges of the above-named employees and
notify them in writing that this has been done and that
the discharges will not be used against them in any
way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
1021BRAVO MECHANICAL
4 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
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.
(d) Post at its Chester, Pennsylvania facility copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 4, 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.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for the purpose of
holding a hearing before an administrative law judge
on the issue of the alleged 8(a)(1) and (5) violation
based on the alleged appropriateness of a bargaining
order.
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 discharge you or otherwise discrimi-
nate against you because of your support or assistance
to the Sheet Metal Workers International Association,
Local Union No. 19, AFL–CIO.
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 offer the following employees immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights or privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings and other
benefits resulting from our discrimination against them,
with interest.
Howard Stover Sr. Pamela Jackson
Earl Stover Mark Stover
Howard Stover Jr. Scott Stover
Bruce Adams Frank Wakeling
Vincent Bilotta
WE WILL notify the above-named employees that we
have removed from our files any references to their
unlawful discharges and that we will not use the dis-
charges against them in any way.
BRAVO MECHANICAL, INC.