Flanes Modier

National Labor Relations Board - Board Decisions

Jun 24, 1981

256 N.L.R.B. 913 (N.L.R.B. 1981)

FI.ANES NOl()llR 913
Flanes Modier and Union General De Trabajadores.
Case 24-CA-4401
June 24, 1981
DECISION AND ORDER
Upon a charge filed on November 6, 1980, by
Union General de Trabajadores, herein called the
Union, and duly served on Flanes Modier, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 24, issued a complaint and notice
of hearing on December 22, 1980, against Respond-
ent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3),
(5), and (1) of the National Labor Relations Act, as
amended. Copies of the charge and complaint and
notice of hearing were duly served on the parties
to this proceeding.
Respondent failed to file an answer to the com-
plaint or request an extension of time for filing an
answer.
On January 29, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment for failure to file an answer
with exhibits attached. On February 5, 1981, the
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Subsequently, on Feb-
ruary 5, 1981, Respondent requested that the Board
grant a 15-day extenstion of time for filing an
answer. Such request was granted by the Board on
February 19, 1981, and the time for filing an
answer was extended to March 6, 1981. Despite the
Board's extension of time for filing an answer, Re-
spondent has not filed an answer or response. The
allegations of the Motion for Summary Judgment
thus stand uncontroverted.
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, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. 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 the answer
256 NLRB No. 144
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 and notice of hearing issued on
December 22, 1980, and duly served on Respond-
ent and the Union, specifically states that unless an
answer to the complaint is filed by Respondent
within 10 days of service thereof "all of the allega-
tions in the complaint shall be deemed to be ad-
mitted by it to be true and may be so found by the
Board." Further, according to the uncontroverted
allegations of the General Counsel's memorandum
in support of the Motion for Summary Judgment,
by letter dated September 19, 1980, and attached to
the Motion for Summary Judgment, the Regional
Director advised Respondent that, due to Respond-
ent's failure to file an answer, counsel for the Gen-
eral Counsel would move for summary judgment.
No answer has been received.
Good cause for failure to answer the complaint
has not been shown. Under the rule set forth
above, the allegations of the complaint are deemed
admitted and are found to be true. Accordingly,
we grant the Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a corporation engaged in the busi-
ness of the manufacture and sale, at wholesale, of
custards and related products. Respondent main-
tains its place of business in the City of Guaynabo,
Commonwealth of Puerto Rico. During the past
calendar year, a representative period, Respondent
in the course and conduct of its business, purchased
and caused to be transported and delivered to its
place of business goods and materials in excess of
$50,000, of which goods and materials valued in
excess of $50,000 were transported and delivered to
it, and received from other enterprises located in
the Commonwealth of Puerto Rico, each of which
other enterprises had received said goods and ma-
terials in interstate commerce directly from points
located outside the Commonwealth of Puerto Rico.
We find, on the basis of the foregoing, that Re-
spondent 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 effectuate the policies of the Act to
assert jurisdiction herein.
Flanes Modier and Union General De Trabajadores.
FIANES MODJIR
:
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Union General de Trabajadores is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR ABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees
of Respondent, employed at its plant located
in Guaynabo, Puerto Rico, exclusive of all
other employees, guards, and all supervisors as
defined in Section 2(11) of the Act.
2. The certification
A majority of the employees of Respondent in
said unit, in a secret-ballot election conducted on
July 14, 1980, under the supervision of the Region-
al Director for Region 24, designated the Union as
their representative for the purposes of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on July 22, 1980, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. Respondents Refusal To Bargain and
Discrimination
On or about July 23, 1980, Respondent, without
prior notification to or bargaining with the Union,
unilaterally discontinued its historical practice of
granting Constitution Day, July 25, as a paid local
holiday to its employees. Respondent has at all
times since refused to bargain with the Union over
the discontinuance of said practice.
In protest against Respondent's refusal to bargain
with the Union over the discontinuance of the
Constitution Day paid holiday, on or about July
23, 1980, Respondent's employees initiated a strike.
On or about July 31, 1980, and again on August 1
and 4, 1980, Respondent's employees, through their
representative Manuel Perfecto, made an uncondi-
tional offer to Respondent to return to work and to
their positions of employment.
At the time at which these unconditional offers
to return to work were made, Respondent had not
permanently replaced employees Ananias Tirado
Aponte, Juan Ramon Sanchez, David Silva Correa,
Julio Cruz Reyes, Jesus Cruz Reyes, Jose Luis
River Diaz, Richardo Vazquez Fontanez, Ismael
Cosme Ortiz, Orlando Rodriguez, Misael Sanchez
Tirando, Marcos Ocasio Rosario, Julio Rivera
Diaz, Benigno Reyes Santos, and Cristino Cruz
Otero. On or about August 7, 1980, several days
after the employee's third unconditional offer to
return to work, Respondent permanently replaced
these above-named employees. Since the date of
the permanent replacement of these employees, Re-
spondent has failed and refused to reinstate, or
offer to reinstate, these employees to their former
or substantially equivalent positions of employ-
ment.
Commencing on or about September 23, 1980,
and thereafter on September 30 and October 14,
1980, Respondent has refused to bargain collective-
ly with the Union.
Accordingly, on the basis of the foregoing facts,
we find that Respondent has, since on or about
July 23, 1980, unilaterally and without prior notifi-
cation discontinued its historical practice of grant-
ing July 25 (Constitution Day) as a paid local holi-
day to its employees and has thereafter refused to
bargain with the Union over the discontinuance of
said practice and since on or about July 23, 1980,
and at all times thereafter, refused to bargain col-
lectively with the Union as the exclusive repre-
sentative of the employees in the appropriate unit,
and that, by such refusals has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act. We further
find by such unilateral action and that by failing to
reinstate, or offer to reinstate, the above-named em-
ployees, Respondent discriminated and is discrimi-
nating in regard to the hire, tenure, and terms and
conditions of employment of its employees, thereby
discouraging membership in a labor organization,
and thus has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
IV. HE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
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,
FLANES MODIER 915
we shall order that it cease and desist therefrom.
We shall also order it to take certain affirmative
action designed to effectuate the policies of the
Act.
We have found that Respondent failed to afford
the Union an opportunity to bargain over the elimi-
nation of Constitution Day (July 25) as a paid holi-
day, in violation of Section 8(a)(5), (3), and (1), and
that Respondent has, since September 23, 1980, re-
fused to bargain collectively with the Union. Ac-
cordingly, we shall order that it cease and desist
therefrom, and, upon request, bargain collectively
with the Union as the exclusive representative of
all employees in the appropriate unit, and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965);
Firestone Wire & Cable Co., a Division of Firestone
Tire & Rubber Company, 249 NLRB 218, 220
(1980).
We have further found that Respondent discrimi-
nated and is discriminating against the above-
named employees in regard to the hire, tenure, and
terms and conditions of employment, thereby dis-
couraging membership in a labor organization, in
violation of Section 8(a)(3) and (1). Accordingly,
we shall order that Respondent offer the above-
named employees full and immediate reinstatement
to their former positions or, if such positions have
been abolished, to any substantially similar posi-
tions, without prejudice to their seniority or any
other rights and privileges previously enjoyed, and
discharging if necessary to their reinstatement any
employees hired after the strikers' offer to return to
work on July 31, 1980, and that Respondent make
them whole for any loss of pay they may have suf-
fered by reason of Respondent's discriminatory ac-
tions by payment to them of a sum equal to that
which each would have received as wages from
the date of their unconditional offer to return to
work, until Respondent offers them reinstatement,
less any net earnings for the interim period. Back-
pay, plus interest, is to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).' Respondent shall make availa-
ble to the Board, upon request, payroll and other
records in order to facilitate checking the amounts
of backpay due to the above-named employees and
any other rights they might be entitled to receive.
The Board, on the basis of the foregoing facts
and the entire record, makes the following:
CONCI.USIONS OF LAW
1. Flanes Modier is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Union General de Trabajadoes is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. A unit including all production and mainte-
nance employees of Respondent, employed at its
plant in Guaynabo, Puerto Rico, exclusive of all
other employees, guards, and all supervisors as de-
fined in Section 2(11) of the Act, constitutes a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Since July 22, 1980, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By failing and refusing on or about July 23,
1980, and at all times thereafter, to bargain collec-
tively with the Union over the elimination of Con-
stitution Day (July 25) as a paid holiday. Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5), (3),
and (1) of the Act.
6. By refusing to bargain collectively with the
Union on September 23, 1980, and thereafter on
September 30 and October 14, 1980, Respondent
has violated Section 8(a)(5) and (1) of the Act.
7. By failing and refusing on or about July 31,
1980, and again on August I and 4, 1980, to rein-
state, or offer to reinstate, the following employees,
Respondent has engaged in and is now engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act:
Ananias Tirado
Aponte
Juan Ramon
Sanchez
David Silva Correa
Ismael Cosme Ortiz
Orlando Rodriguez
Misael Sanchez Tirado
Marcos Ocasio Rosario
Julio Rivera Diaz
' See. generally. ILs Plumbing & lieating (Co 138 NLRB 716 ( 1h2)
In accordance ith his dissent in Ol,mpi, .fIdwual Crporrtoln 250
NlRB 146 (198l(), Member Jenkins would asward ntcrct on he backpaN
due based upon the foirmula therein set frth
FLANES MODER
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Samuel Centeno Benigno Reyes Santos
Rivera Cristino Cruz Otero
Julio Cruz Reyes Jose Luis Reyes
Jose Luis Rivera Richardo Vazquez
Diaz Fontanez
8. The aforsaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Re-
lations Board hereby orders that the Respondent,
Flanes Modier, Guaynabo, Puerto Rico, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively
with the Union over its decision to eliminate Con-
stitution Day (July 25) as a paid holiday, and all
other terms and conditions of employment of the
employees in the aforesaid appropriate unit.
(b) Failing and refusing to reinstate, or offer to
reinstate, the above-named employees to their
former positions or, if such positions have been
abolished, to any substantially similar positions,
without prejudice to their seniority or any other
rights and privileges previously enjoyed.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed 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) Upon request, bargain collectively with
Union General de Trabajadores with respect to the
elimination of Constitution Day (July 25) as a paid
holiday, and over any other terms or conditions of
employment of the employees in the aforesaid ap-
propriate unit, and to reduce to writing any agree-
ment reached as result of such bargaining.
(b) Offer full and immediate reinstatement to the
following employees and make them whole for any
loss of pay they suffered by reason of Respondent's
discrimination against them, in accordance with the
recommendations set forth in the section of this
Decision entitled "The Remedy."
Jose Luis Rivera
Diaz
Richardo Vazquez
Fontanez
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Mail an exact copy in English and in Spanish
of the attached notice marked "Appendix" 2 to
Union General de Trabajadores and to all the em-
ployees at its Guaynabo, Puerto Rico, plant.
Copies of said notice in English and in Spanish, on
forms provided by the Regional Director for
Region 24, after being duly signed by Respondent's
authorized representative, shall be mailed immedi-
ately upon receipt thereof, as herein directed, and
posted by Respondent at its Guaynabo, Puerto
Rico, plant immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, 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.
(e) Notify the Regional Director for Region 24,
in writing, within 20 days from the date of this
Order, what steps have been 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 Labor Relations Board" shall read "Posted Pursu-
anli to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Relations Board"
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 have violated the National Labor Relations
Act, as amended, and has ordered us to post this
notice:
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
Ananias Tirado
Aponte
Juan Ramon
Sanchez
David Silva Correa
Samuel Centeno
Rivera
Julio Cruz Reyes
Ismael Cosme Ortiz
Orlando Rodriguez
Misael Sanchez Tirado
Marcos Ocasio Rosario
Julio Rivera Diaz
Benigno Reyes Santos
Cristino Cruz Otero
Jose Luis Reyes
FLANES MODIER 917
To refrain from the exercise of any or all
such activities.
WE WILL NOT fail and refuse to bargain col-
lectively with Union de Trabajadores concern-
ing the elimination of Constitution Day (July
25) as a paid holiday or refuse to bargain col-
lectively with the Union concerning any other
terms and conditions of employment.
WE WILL NOT fail and refuse to reinstate the
following employees to their former positions
or, if such positions have been abolished, to
any substantially similar positions, without
prejudice to their seniority or any other rights
and privileges previously enjoyed:
Julio Cruz Reyes Richardo Vazquez
Jose Luis Rivera Fontanez
Diaz
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act.
WE WILL, upon request, bargain collectively
with Union General de Trabajadores over the
elimination of Constitution Day (July 25) as a
paid holiday, or any other terms and condi-
tions of employment.
WE WILL offer full and immediate reinstate-
ment to the above-named employees to their
former positions or, if such positions have been
abolished, to any substantially similar positions,
and make them whole for any loss of pay suf-
fered as a result of our discrimination against
them, plus interest.
FIANES MODIER
Ananias Tirado
Aponte
Juan Ramon
Sanchez
David Silva
Correa
Samuel Centeno
Rivera
Ismael Cosme Ortiz
Orlando Rodriguez
Misael Sanchez Tirado
Marcos Ocasio Rosario
Julio Rivera Diaz
Benigno Reyes Santos
Cristino Cruz Otero
Jose Luis Reyes
FLANES MODER