Erler Corp.

National Labor Relations Board - Board Decisions

May 13, 1993

311 N.L.R.B. 1 (N.L.R.B. 1993)

1
311 NLRB No. 2
ERLER CORP.
1 Also see Member Oviatt’s position set forth in Adirondack Con-
struction Corp., 306 NLRB 704 fn. 2 (1992).
2 Both the General Counsel’s letter and the brief in support of the
Motion for Summary Judgment state incorrectly that the answer
must be received before ‘‘January 5, 1992.’’ We find this inadvert-
ency to be harmless error.
The Erler Corporation and its alter ego American
Tooling Technology, Inc. and Local Lodge PM
2846, Region 1 and 5 of the International Asso-
ciation of Machinists and Aerospace Workers
AFL–CIO, CLC. Case 8–CA–24791
May 13, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Upon a charge filed by the Union August 6, 1992,
the General Counsel of the National Labor Relations
Board issued a complaint against the Erler Corporation
(Respondent Erler) and its alter ego, American Tooling
Technology, Inc. (Respondent American), the Re-
spondents, alleging that they have violated Section
8(a)(1), (3), and (5) of the National Labor Relations
Act.
On October 1, 1992, the Respondents filed an an-
swer neither admitting nor denying the allegations in
the complaint. In the answer, John Erler, president of
both Respondents, asserted, on behalf of Respondent
American, that all of its manufacturing operations had
ceased, although he still operated the business from his
home. John Erler made no specific mention of Re-
spondent Erler, and neither he nor anyone else sepa-
rately filed an answer on behalf of Respondent Erler.
On December 18, 1992, the General Counsel wrote
to Erler, advising him that the answer he had filed did
not meet the requirements of the Board’s Rules and
Regulations governing the filing of an answer to a
complaint. The letter encouraged John Erler to consult
the Rules and to submit an amended answer on or be-
fore January 5, 1993. The Respondents did not file an
amended answer.
On January 11, 1993, the General Counsel filed a
Motion for Summary Judgment. On January 13, 1993,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondents filed no
response. The allegations 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 the allegations
in the complaint shall be considered to be admitted to
be true and shall be so found by the Board.’’
The answer did not specifically deny or explain the
allegations in the complaint, but stated explicitly that
Respondent American neither admitted nor denied the
allegations in the complaint. The answer also referred
to financial difficulties Respondent American was ex-
periencing. Claims of financial difficulty, however, are
insufficient to refute the violations alleged. See gen-
erally Adirondack Foundries, 286 NLRB 263 (1987);
Goldstein Co., 274 NLRB 682 (1985).1 The answer
did not respond to the complaint on behalf of Re-
spondent Erler. Accordingly, the answer raises no ma-
terial issues of fact or law warranting a hearing or ren-
dering summary judgment inappropriate. Auburn Die
Co., 282 NLRB 1044 (1987).
Further, the undisputed allegations in the Motion for
Summary Judgment disclose that the General Counsel,
by a letter dated December 18, 1992, notified the Re-
spondents that unless an answer was received by Janu-
ary 5, 1993,2 a Motion for Summary Judgment would
be filed.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Erler, an Ohio corporation, at its facility
in Toledo, Ohio, has been engaged in the manufacture
and nonretail sale of industrial die models, duplicating
plastics, prototypes, and pattern equipment. During the
12-month period ending September 18, 1992, Respond-
ent Erler annually purchased and received goods at its
Toledo, Ohio facility valued in excess of $50,000 di-
rectly from points outside the State of Ohio. During
the 12-month period ending September 18, 1992, Re-
spondent American annually performed services at its
Toledo, Ohio facility valued in excess of $50,000 out-
side the State of Ohio. We find that the Respondents
are employers engaged in commerce within the mean-
ing 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
On about June 23, 1992, Respondent American was
established by Respondent Erler as a subordinate in-
strument to, and a disguised continuance of, Respond-
ent Erler. Since about June 23, 1992, Respondent Erler
and Respondent American have been affiliated busi-
ness enterprises with common officers, ownership, di-
rectors, management, and supervision; have formulated
and administered a common labor policy; have shared
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
common premises and facilities; have provided serv-
ices for and made sales to each other; and have inter-
changed personnel with each other. We find that Re-
spondent American and Respondent Erler constitute a
single-integrated business enterprise and are alter egos
and a single employer within the meaning of the Act.
A. The 8(a)(3) and (1) Violations
On about June 23, 1992, Respondent Erler termi-
nated employees Larry Bolander, Jeff Daley, Norm
Kwiatkowski, Fred B. Nelson, Walt Papke, Jim Perry,
Mike Ruskinoff, Robert Strait, Gerald Xaver, and other
employees whose identities are unknown because they
were members of the Union and to discourage its em-
ployees’ membership in the Union. We find that the
Respondent has thereby interfered with, restrained, and
coerced these employees in the exercise of rights guar-
anteed in Section 7 of the Act in violation of Section
8(a)(1) of the Act.
We also find that the Respondent has discriminated
in regard to the hire or tenure or conditions of employ-
ment of these employees, thereby discouraging mem-
bership in a labor organization in violation of Section
8(a)(3) and (1) of the Act.
B. The 8(a)(5) and (1) Violations
Since about 1953, the Union has been designated as
the exclusive collective-bargaining representative of,
and until June 23, 1992, was recognized by Respond-
ent Erler as, the exclusive collective-bargaining rep-
resentative of employees in the following appropriate
unit:
All journeymen wood and metal pattern and mod-
elmakers, plastic and plaster patternmakers and
their apprentices, but excluding any other employ-
ees of the Respondent who do not work on pat-
terns.
This recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of
which was effective June 1, 1989, to May 31, 1992,
and by agreement of the parties was extended until
May 31, 1993.
By virtue of Section 9(a) of the Act, the Union has
been since 1953, and is now, the exclusive representa-
tive of unit employees employed by Respondent Erler
and, from about June 23, 1992, has been the exclusive
bargaining representative of employees employed by
Respondent American.
About December 1991, Respondent Erler unilaterally
discontinued payment of insurance premiums, payment
to the pension fund, and payments to the health and
welfare fund for unit employees.
On about June 23, 1992, Respondent Erler closed its
facility, terminated all but three unit employees, and
reopened its facility under the name American Tooling
Technology, Inc. Since June 23, 1992, the Respondent
has ceased to apply the collective-bargaining agree-
ment and/or the negotiated terms and conditions of em-
ployment. All the unilateral action described above re-
late to wages, hours, and other terms and conditions of
employment of unit employees, and are therefore man-
datory subjects for purposes of collective bargaining.
The Respondent engaged in each of these unilateral ac-
tions without prior notice to the Union and without af-
fording it an opportunity to bargain with respect to
these actions and and their effects.
On about June 23, 1992, Respondent Erler withdrew
recognition from the Union as the exclusive collective-
bargaining representative of the unit employees.
On about June 23, 1992, President John Erler, a su-
pervisor and agent for Respondent Erler, bypassed the
Union and dealt directly with unit employees by solic-
iting certain employees to enter into individual em-
ployment agreements regarding wages, hours, and
other terms and conditions of employment.
On about June 23, the Union requested bargaining,
and Respondent Erler refused to bargain with the
Union concerning its decision to close the plant and its
effects, mandatory subjects of bargaining.
On about June 29, 1992, the Union filed a grievance
with Respondent Erler concerning the closing of
Erler’s facility, its termination of all but three employ-
ees, and its reopening under the name American Tool-
ing Technology, Inc., and since that date the Union has
requested and Respondent Erler has refused to process
the grievance, a mandatory subject of bargaining, and
Respondent Erler has thereby since that date refused to
bargain collectively about the grievance.
Since about July 27, 1992, the Union has requested,
and Respondent Erler has refused, the following infor-
mation necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-bar-
gaining representative of unit employees:
Various documents relating to the cir-
cumstances of the closure by Respondent Erler
and commencement of operation by Respondent
American.
Financial information pertaining to the closure
by Respondent Erler and commencement of oper-
ations by Respondent American.
The identity of current employees and informa-
tion pertaining to their wages, hours of work, em-
ployment status, fringe benefits, and other terms
and conditions of employment.
Since about June 23, 1992, the Respondents have
operated Respondent American as an alter ego and/or
a disguised continuance of Respondent Erler in such a
manner, or in order, to avoid bargaining with the
Union and have thereby failed and refused to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of the unit employees.
3ERLER CORP.
3 This shall include reimbursing employees for any contributions
they may have made, with interest, for the maintenance of the funds
after the Respondent ceased making required benefit fund payments.
Concord Metal, 295 NLRB 912, 914 (1989).
4 Any additional amounts necessary to make whole any funds es-
tablished in the agreement will be determined in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
We find that, by each of the acts described above,
the Respondents have interfered with, restrained, and
coerced employees in the exercise of the rights guaran-
teed them in Section 7 of the Act in violation of Sec-
tion 8(a)(1) of the Act.
We also find that, by each of the acts described
above, the Respondents have failed and refused to bar-
gain collectively and in good faith with the exclusive
collective-bargaining representative of its employees
within the meaning of Section 8(d) of the Act in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By terminating employees Larry Bolander, Jeff
Daley, Norm Kwiatkowski, Fred B. Nelson, Walt
Papke, Jim Perry, Mike Ruskinoff, Robert Strait, Ger-
ald Xaver, and other employees whose identities are
unknown, the Respondents have engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(3) and (1) and Section 2(6) and (7) of
the Act.
2. By unilaterally discontinuing payment of insur-
ance premiums, payments to the pension fund, and
payments to the health and welfare fund for unit em-
ployees; by closing a facility and/or plant, terminating
all but three employees, and reopening the facility
under another name without affording the Union an
opportunity to bargain with respect to this conduct and
its effects; by ceasing to apply the collective-bargain-
ing agreement and/or negotiated terms and conditions
of employment; by withdrawing recognition of the
Union as the exclusive collective-bargaining represent-
ative of the unit employees; by bypassing the Union
and dealing directly with unit employees by soliciting
certain of the employees to enter into individual em-
ployment agreements regarding wages, hours, and
other terms and conditions of employment; by refusing
the Union’s request to process a grievance over the
failure to bargain concerning the decision to close the
plant and the effects of that decision; and by refusing
the Union’s request to furnish it with information that
is necessary for and relevant to the Union’s perform-
ance of its duties as the exclusive collective-bargaining
representative of the unit employees, the Respondents
have engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. We shall
order the Respondent to reopen the Erler facility and/or
plant and to make whole the unit employees for any
losses of earnings and other benefits they have suffered
as a result of the discriminatory and unilateral termi-
nations and to make whole the employees for any
losses of earnings or other benefits suffered as a result
of those terminations. Interest on the backpay shall be
computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). We also
shall order the Respondent to offer the employees who
have been terminated immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or other rights or privileges pre-
viously enjoyed, and to make them whole for any
losses of earnings and other benefits they may have
suffered as a result of the discrimination against them.
Backpay shall be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Re-
tarded, supra. We shall order the Respondents to re-
move references to the discriminatory terminations
from the affected employees’ files and to notify the
employees in writing that this has been done and that
the terminations will not be used against them in any
way.
We shall order the Respondents to rescind the indi-
vidual employment agreements that were solicited by
Respondent Erler.
We shall order the Respondents to make the em-
ployees and employee benefit funds whole, as pre-
scribed in Ogle Protection Service, 183 NLRB 682
(1970), and Kraft Plumbing & Heating, 252 NLRB
891 (1980), for any losses suffered as a result of the
Respondents’ failure to make required contributions to
the Union’s health and welfare and pension funds,3
with interest to be computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).4
We shall order the Respondent to recognize the
Union, to give full force and effect to the existing col-
lective-bargaining agreement, and, on request, to bar-
gain with the Union concerning any decisions to close
its facility and/or plant, termination of employees
through the facility’s closing, and reopening of the fa-
cility under a different name, about effects of those de-
cisions, and about the grievance filed over those mat-
ters. We shall also order the Respondents to process
the grievance.
We shall order the Respondents to furnish the infor-
mation requested by the Union on July 27, 1992, that
is necessary for, and relevant to, the Union’s perform-
ance of its duties as the exclusive collective-bargaining
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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 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.’’
representative of the unit employees. Because of the
closure of the Erler facility, we shall require that the
Respondents both post and mail to employees the at-
tached notice.
Nothing in our Order shall authorize or require the
Respondents to rescind wages and benefit increases
that have been conferred.
ORDER
The National Labor Relations Board orders that the
Respondent, the Erler Corporation and its alter ego
American Tooling Technology, Inc., Toledo, Ohio,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating employees because they are mem-
bers of the Union, to discourage employee membership
in the Union, and without prior notice to and bargain-
ing with the Union.
(b) Withdrawing recognition from and failing and
refusing to bargain with Local Lodge PM 2846, Re-
gion 1 and 5 of the International Association of Ma-
chinists and Aerospace Workers, AFL–CIO, CLC, as
the exclusive bargaining representative of the employ-
ees in the bargaining unit by unilaterally discontinuing
payment of insurance premiums, payment to the pen-
sion fund, and payments to the health and welfare fund
for employees; by closing their facility and/or plant,
reopening the facility under another name, and termi-
nating employees without bargaining about those uni-
lateral decisions and their effects on unit employees
and a grievance over these decisions, and their effects;
and by unilaterally ceasing to apply the collective-bar-
gaining agreement and/or negotiated terms and condi-
tions of employment to unit employees. The appro-
priate unit is:
All journeymen wood and metal pattern and
modelmakers, plastic and plaster patternmakers
and their apprentices, but excluding any other em-
ployees of the Respondent who do not work on
patterns.
(c) Dealing directly with unit employees by solicit-
ing them to enter into individual employment agree-
ments.
(d) Refusing to process grievances.
(e) Refusing to furnish the Union with information
that is necessary for, and relevant to, the Union’s per-
formance of its duties as the collective-bargaining rep-
resentative of the unit employees.
(f) 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) Reopen the facility and/or plant that was closed
on June 23, 1992.
(b) Offer Larry Bolander, Jeff Daley, Norm
Kwiatkowski, Fred B. Nelson, Walt Papke, Jim Perry,
Mike Buskinoff, Robert Strait, Gerald Xaver, and other
employees whose identities are unknown who were ter-
minated on June 23, 1992, 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 any other rights or
privileges previously enjoyed, and make them whole
for any loss of earnings or other benefits suffered as
a result of the discrimination against them, in the man-
ner set forth in the remedy.
(c) Recognize and, on request, bargain with the
Union as the exclusive collective-bargaining represent-
ative of the unit employees, and give full force and ef-
fect to the terms of the current collective-bargaining
agreement.
(d) Make all contractually required fund and insur-
ance premium payments that are due and make whole
unit employees for any losses they may have suffered
because of the Respondent’s failure to pay insurance
premiums and to make payments to the pension fund
and the health and welfare fund, as required under the
collective-bargaining agreement, with interest, as set
forth in the remedy section of this decision.
(e) Remove from the files of the discriminatorily ter-
minated employees’ any reference to the terminations
and notify the employees in writing that this has been
done and that the terminations will not be used against
them in any way.
(f) Rescind the individual employment agreements
that the Respondent solicited unit employees to sign.
(g) Process the grievance over the closing of the
plant.
(h) Furnish the information requested by the Union
that is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-bar-
gaining representative of the unit employees.
(i) Preserve and, on 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 money due
under the terms of this Order.
(j) Post at its facility in Toledo, Ohio, copies of the
attached notice marked ‘‘Appendix.’’5 and mail a copy
of this notice to the last known address of the employ-
ees employed on June 23, 1992, at the Erler facility in
the appropriate bargaining unit represented by Local
Lodge PM 2846, Region 1 and 5 of the International
Association of Machinists and Aerospace Workers,
5ERLER CORP.
AFL–CIO, CLC. Copies of the notice, on forms pro-
vided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent and mailed
immediately upon receipt and maintained for 60 con-
secutive 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.
(k) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 terminate employees because they are
members of the Local Lodge PM 2846, Region 1 and
5 of the International Association of Machinists and
Aerospace Workers, AFL–CIO, CLC, or to discourage
employees from joining the Union.
WE WILL NOT unilaterally discontinue payments of
insurance premiums or making pension and health and
welfare fund payments.
WE WILL NOT close our facility and/or plant, termi-
nate employees, and reopen the facility under another
name, without bargaining with the Union over these
decisions, their effects, and grievances filed over these
matters.
WE WILL NOT refuse to process grievances filed on
behalf of the unit employees.
WE WILL NOT refuse to recognize or to meet, nego-
tiate, and bargain with the Union as the exclusive bar-
gaining representative of the employees in the bargain-
ing unit.
WE WILL NOT cease to apply the collective-bargain-
ing agreement or negotiated terms and conditions of
employment to unit employees.
WE WILL NOT deal directly with employees by solic-
iting them to enter into individual employment con-
tracts.
WE WILL NOT refuse to furnish the Union with in-
formation necessary for and relevant to the Union’s
performance of its duties as the exclusive collective-
bargaining representative of the employees in the unit.
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 reopen the Erler facility and/or plant that
we closed on June 23, 1992.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining represent-
ative of employees in the following appropriate unit
with respect to rates of pay, wages, hours, and other
terms and conditions of employment, and WE WILL
give full force and effect to the current collective-bar-
gaining agreement:
All journeymen wood and metal pattern and mod-
elmakers, plastic and plaster patternmakers and
their apprentices, but excluding any other employ-
ees of the Respondent who do not work on pat-
terns.
WE WILL offer Larry Bolander, Jeff Daley, Norm
Kwiatkowski, Fred B. Nelson, Walt Papke, Jim Perry,
Mike Buskinoff, Robert Strait, Gerald Xaver, and other
employees whose identities are unknown who were ter-
minated June 23, 1992, immediate and full reinstate-
ment to their former positions without prejudice to
their seniority or other rights or privileges; and WE
WILL make them whole for any losses they have in-
curred as a result of the discrimination against them,
plus interest.
WE WILL remove from our files any reference to the
discriminatory terminations and WE WILL notify the in-
dividuals discriminatorily terminated that this has been
done and that the terminations will not be used against
them in any way.
WE WILL make whole our unit employees by paying
all delinquent insurance premiums and payments to
pension and health and welfare funds, and by reim-
bursing our unit employees for any expenses ensuing
from the failure to make those payments.
WE WILL process the grievance the Union filed on
June 29, 1992.
WE WILL rescind all individual employee contracts
that we solicited from unit employees.
WE WILL furnish information requested by the
Union that is necessary for and relevant to its duties
as the exclusive collective-bargaining representative of
the employees in the unit.
THE ERLER CORPORATION AND ITS
ALTER EGO AMERICAN TOOLING TECH-
NOLOGY, INC.