Homark Mfg., Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 2004

343 N.L.R.B. 90 (N.L.R.B. 2004)

1
Homak Manufacturing Company, Inc., and/or How-
ard B. Samuels, Trustee/Assignee, as alter egos
and/or single employer and International Broth-
erhood of Teamsters, Local 714, AFL–CIO. Case
13–CA–41619
November 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the amended complaint (complaint). Upon
a charge and amended charge filed by the Union on
January 12 and February 18, 2004, respectively, the
General Counsel issued the complaint on October 1,
2004 against Homak Manufacturing Company, Inc.
and/or Howard B. Samuels, Trustee/Assignee, as alter
egos and/or single employer (the Respondent) alleging
that it had violated Section 8(a)(1) and (5) of the Act.1
On October 15, 2004, the General Counsel filed a Mo-
tion for Default Judgment with the Board. On October
19, 2004, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent 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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a 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 complaint affirmatively stated
that unless an answer was filed within 14 days from ser-
vice of the complaint, all the allegations in the complaint
would be considered admitted. As stated above, al-
though Respondent Homak filed an answer to the origi-
nal complaint, it subsequently withdrew its answer on
October 8, 2004. The withdrawal of an answer has the
same effect as a failure to file an answer, i.e., the allega-
tions in the complaint must be considered to be true.2

1 Based on the same charge and amended charge, the General Coun-
sel had issued the original complaint on April 19, 2004, against Homak
Manufacturing Company, Inc. (Respondent Homak). Respondent
Homak filed an answer on April 28, 2004. (The General Counsel’s
motion inadvertently states that the answer was filed on April 24,
2004.) On October 8, 2004, however, Respondent Homak withdrew its
answer to the original complaint.
2 See Maislin Transport, 274 NLRB 529 (1985).
Further, after the issuance of the complaint, Respon-
dent Homak’s designated trustee/assignee, Respondent
Howard B. Samuels, advised the Region in writing on
October 7, 2004, that the Respondent would not be filing
an answer to the complaint. In fact, no answer to the
complaint has been filed.
Accordingly, in the absence of good cause being
shown for the failure to file a timely answer, we grant the
General Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Homak, an Illinois
corporation with offices and a place of business in Bed-
ford Park, Illinois, has been engaged in the sheet metal
fabrication of tool boxes, gun cabinets, and medical
carts. During the 12-month period preceding the issu-
ance of the complaint, a representative period, Respon-
dent Homak, in conducting its business operations de-
scribed above, sold and shipped from its Bedford Park,
Illinois facility products, goods, and materials valued in
excess of $50,000 directly to points outside the State of
Illinois. We find that Respondent Homak is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
On or about September 10, 2004, Respondent Homak,
through its board of directors and shareholders, entered
into a Trust Agreement and Assignment for the Benefit
of Creditors (the Agreement) with Howard B. Samuels,
of Rally Capital Services, under which Howard B.
Samuels was duly designated by Respondent Homak as
its trustee/assignee.
By virtue of the Agreement, Howard B. Samuels (Re-
spondent Samuels) was granted full possession of Re-
spondent Homak’s property, assets, and operations, and
full authority and responsibility to liquidate Respondent
Homak’s business and distribute the proceeds therefrom
to the Respondent’s creditors.
Further, by virtue of the Agreement, Respondent
Samuels, as trustee/assignee, was given full authority to,
among other things, settle any and all claims on behalf of
Respondent Homak, with full power to compromise such
claims, or in the discretion of the trustee/assignee, to sue
or be sued, and to prosecute or defend any claim or
claims of any nature existing against or in favor of Re-
spondent Homak.
Based upon the foregoing, we find that Respondent
Homak and Respondent Samuels are alter egos and/or a
single employer within the meaning of the Act.
At all material times, International Brotherhood of
Teamsters, Local 714, AFL–CIO (the Union) has been a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Tom Pold - Executive Vice President
Alfonso Navarro - Plant Manager
Jorge Sanchez - Inventory Control Manager
Andy Rios - Production Manager
Jaime Hurtado - Foreman
Salvadore Enciso - Foreman
On about November 25, 2003, the Respondent, by
Tom Pold at Respondent Homak’s facility, orally prom-
ulgated and since then has maintained the overly broad
no-solicitation rule that employees may not speak to
other employees or leave their workstations to go any-
where else other than the office.
On about December 12, 2003, the Respondent, by Al-
fonso Navarro, at the Respondent’s facility:
(1) Interrogated employees regarding employees’
union and/or protected concerted activities.
(2) Threatened employees with discharge if they
supported the Union or engaged in union and/or
concerted activities.
On about December 16, 2003, the Respondent, by Pold
and Navarro, at Respondent Homak’s facility, interro-
gated employees regarding employees’ union and/or pro-
tected concerted activities.
On about December 16, 2003, the Respondent, by
Navarro, at Respondent Homak’s facility, solicited
grievances from employees and promised to remedy
those grievances to discourage employees from support-
ing the Union.
On about December 17, 2003, the Respondent, by Sal-
vadore Enciso, at Respondent Homak’s facility, threat-
ened employees with discharge if they supported the Un-
ion or engaged in union and/or protected concerted ac-
tivities.
On about December 18, 2003, the Respondent,
by Pold and Navarro, at the Respondent’s facility:
(1) Threatened employees with discharge if they
supported the Union or engaged in union and/or pro-
tected concerted activities.
(2) Threatened employees with unspecified repri-
sals if they supported the Union or engaged in union
and/or protected concerted activities.
(3) Interrogated employees regarding employees’
union and/or protected concerted activities.
(4) Promised a wage increase and threatened to
withhold a wage increase to discourage employees
from supporting the Union.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production and
maintenance department employees, shipping and re-
ceiving employees, truck drivers, leadmen and help-
ers/set-up employed by the Employer at its facility cur-
rently located at 5151 W. 73rd Street, Bedford Park, Il-
linois; but excluding temporary employees, office
clerical employees and guards, professional employees
and supervisors as defined in the Act.
On about December 19, 2003, a majority of the em-
ployees in the unit voted in a Board-conducted election
for the Union to be their exclusive collective-bargaining
representative.
On January 6, 2004, the Union was certified as the ex-
clusive collective-bargaining representative of the unit.
At all material times, the Union, by virtue of Section
9(a) of the Act, has been and is the exclusive bargaining
representative of the unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
On about December 23, 2003, the Respondent laid off
unit employees including, but not limited to, those listed
in Appendix A of this decision.
The layoff of the unit employees relates to wages,
hours, and other terms and conditions of employment of
the unit, and are mandatory subjects for the purpose of
collective bargaining.
The Respondent laid off the unit employees without
prior notice to the Union and without affording the Un-
ion an opportunity to bargain with the Respondent with
respect to this conduct and the effects of this conduct.
CONCLUSIONS OF LAW
1. The Respondent has interfered with, restrained, and
coerced employees in the exercise of the rights guaran-
teed in Section 7 of the Act, and has thereby violated
Section 8(a)(1) of the Act by: (a) promulgating and
maintaining an overly broad no-solicitation rule; (b) in-
terrogating employees regarding employees’ union
3
and/or protected concerted activities; (c) threatening em-
ployees with discharge if they supported the Union or
engaged in union and/or concerted activities; (d) solicit-
ing grievances from employees and promising to remedy
those grievances to discourage employees from support-
ing the Union; (e) threatening employees with unspeci-
fied reprisals if they supported the Union or engaged in
union and/or protected concerted activities; and (f) prom-
ising a wage increase and threatening to withhold a wage
increase to discourage employees from supporting the
Union.
2. By laying off unit employees without prior notice to
the Union and without affording the Union an opportu-
nity to bargain with the Respondent concerning the lay-
offs and their effects, the Respondent has failed and re-
fused to bargain collectively and in good faith with the
exclusive bargaining representative of its employees, in
violation of Section 8(a)(5) and (1) of the Act.
The Respondent’s unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) 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, having
found that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing to notify and bargain with the
Union about the decision to lay off unit employees on
about December 23, 2003 and the effects of the layoff,
we shall order the Respondent to bargain with the Union,
on request, about the layoff decision and its effects.
Further, we shall order the Respondent to offer the
employees laid off on about December 23, 2003, includ-
ing those listed in Appendix A, full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights and privileges previously en-
joyed, and to make them whole for any loss of earnings
and other benefits suffered as a result of the Respon-
dent’s unlawful conduct.3 Backpay shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Homak Manufacturing Company, Inc.
and/or Howard B. Samuels, Trustee/Assignee, as Alter

3 See, e.g., Pan American Grain Co., 343 NLRB No. 47 (2004).
Egos and/or Single Employer, Bedford Park, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally laying off employees in the following
unit without providing International Brotherhood of
Teamsters, Local 714, AFL–CIO with notice and an op-
portunity to bargain concerning the decision to lay off
employees and the effects of that decision. The unit is:
All full-time and regular part-time production and
maintenance department employees, shipping and re-
ceiving employees, truck drivers, leadmen and help-
ers/set-up employed by the Employer at its facility cur-
rently located at 5151 W. 73rd Street, Bedford Park, Il-
linois; but excluding temporary employees, office
clerical employees and guards, professional employees
and supervisors as defined in the Act.
(b) Promulgating and maintaining an overly broad no-
solicitation rule that employees may not speak to other
employees or leave their workstations to go anywhere
else other than the office.
(c) Interrogating employees regarding employees’ un-
ion and/or protected concerted activities.
(d) Threatening employees with discharge and un-
specified reprisals if they supported the Union or en-
gaged in union and/or protected concerted activities.
(e) Soliciting grievances from employees and promis-
ing to remedy those grievances to discourage employees
from supporting the Union.
(f) Promising a wage increase and threatening to with-
hold a wage increase to discourage employees from sup-
porting the Union.
(g) 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) On request, bargain with the Union concerning the
decision to lay off employees on about December 23,
2003, and the effects of that decision, and put in writing
and sign any agreement reached as a result of such bar-
gaining.
(b) Within 14 days from the date of this Order, offer
the employees laid off on about December 23, 2003, in-
cluding those listed in Appendix A, full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights and privileges previously
enjoyed.
(c) Make whole the laid-off employees, including
those listed in Appendix A, for any loss of earnings and
other benefits suffered as a result of their unlawful lay-
offs, with interest, in the manner set forth in the remedy
section of this decision.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Bedford Park, Illinois, copies of the at-
tached notice marked "Appendix B."4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 13, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
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 Respondent to ensure that the notices are not al-
tered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since November
25, 2003.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

4 IIf 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
5
APPENDIX A
Juan Ortega Guierrmo Estrada
Wilson Velez Ramon Guzman
Carlos Ramirez Gabriel Herrera
Amauri Ruiz Cresencio Morales
Jose Alvarez Jose G. Barragan
Concepcion (Pedro) Marchan Delfino Espinosa-Garcia
Juan Sandoval Hugo Castillo
Leonel Segura Jose Rojo
Joseph W. Valentin Luis Govea
Jose Esparza Rafael Ramirez
Bulfrano Damian Jose Mendoza
Perfecto Garcia Margarito Jiminez-Salgado
Emeterio Plascencia Regino Raniirez.
Hector Cordova Francisco Escobedo-Martinez
Jose Esparza Sr. Alfonso Murillo
Jesus Carranza Bledi Canino
Brian Mosley Lawerence R. Olivas, Jr.
Gonzalo Oliveros lgnacio Ceron
Bulmaro Perez Margarita Vergara
Luis J. Cardenas Rodrigo Hurtado
Michel Baptiste Armando Ortega
Otto Colocho Gardell Torres
Emiliano Diaz Nicols Fernandez
Manuel Rodriguez Eleasar Sanchez
Rodrigo Lopez Bonel Ulysse
Wenceslao Cruz-Torrez Antonio Guardado
Trinidad Cintora Maria Cortez
Patricio Rodriguez Augustin Sanchez
Pedro Arreola Maria Guadalupe Valdovinos
Silvestre Gonzalez Reyna Murillo
Jose Rodriguez Luz Maria Tavares
Cirilo Guzman Jean Daniel Sanon
Tiburcio Salinas Jose G. Santillan
Ricardo Alcaraz Gustavo Hernandez
Pantaleon Rodriguez Maria Rosario Valdovinos
Joaquin Bahena Raul Perez
Victor Feliciano Efren Delgado-Arollo
Ramiro Dominguez Israel Abonce
Rosendo Resendez Jose A. Vasquez
Guadalupe (Jorge) Salinas Luis A. Buther Oyola
Hermino Carlos Angel Herrera
DECISIONS OF THE NATIONAL LABOR RLATIONS BOARD6
Javier Briones Bardomiano Gomez
Roberto Fl ores Ruben Moreno Arredondo
Reyes Ruiz Douglas Guyette
Lucas Serrano Edward Rios
Raul Montoya Juan Gomez
lgnacio Rivas Morgan Gonzalez
Jesus Gonzalez Matthew Wilkinson
Moises Garcia Ancelmo Saucedo
HOMAK MFG. CO. 7
APPENDIX B
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unilaterally lay off employees in the fol-
lowing unit without providing International Brotherhood
of Teamsters, Local 714, AFL–CIO with notice and an
opportunity to bargain concerning the decision to lay off
employees and the effects of that decision. The unit is:
All full-time and regular part-time production and
maintenance department employees, shipping and re-
ceiving employees, truck drivers, leadmen and help-
ers/set-up employed by us at our facility currently lo-
cated at 5151 W. 73rd Street, Bedford Park, Illinois;
but excluding temporary employees, office clerical em-
ployees and guards, professional employees and super-
visors as defined in the Act.
WE WILL NOT promulgate and maintain an overly broad
no-solicitation rule that employees may not speak to
other employees or leave their workstations to go any-
where else other than the office.
WE WILL NOT interrogate employees regarding their un-
ion and/or protected concerted activities.
WE WILL NOT threaten employees with discharge and
unspecified reprisals if they supported the Union or en-
gaged in union and/or protected concerted activities.
WE WILL NOT solicit grievances from employees and
promise to remedy those grievances to discourage em-
ployees from supporting the Union.
WE WILL NOT promise a wage increase and threaten to
withhold a wage increase to discourage employees from
supporting the Union.
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, on request, bargain with the Union concern-
ing the decision to lay off employees on about December
23, 2003, and the effects of that decision, and put in writ-
ing and sign any agreement reached as a result of such
bargaining.
WE WILL, within 14 days from the date of the Board’s
Order, offer the employees laid off on about December
23, 2003, including those listed in the Attachment to this
Notice, full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
and privileges previously enjoyed.
WE WILL make whole the laid-off employees, includ-
ing those listed in the following Attachment, for any loss
of earnings and other benefits suffered as a result of their
unlawful layoffs, with interest.
HOMAK MANUFACTURING COMPANY, INC.,
AND/OR HOWARD B. SAMUELS,
TRUSTEE/ASSIGNEE, AS ALTER EGOS AND/OR
SINGLE EMPLOYER
DECISIONS OF THE NATIONAL LABOR RLATIONS BOARD8
ATTACHMENT
Juan Ortega Guierrmo Estrada
Wilson Velez Ramon Guzman
Carlos Ramirez Gabriel Herrera
Amauri Ruiz Cresencio Morales
Jose Alvarez Jose G. Barragan
Concepcion (Pedro) Marchan Delfino Espinosa-Garcia
Juan Sandoval Hugo Castillo
Leonel Segura Jose Rojo
Joseph W. Valentin Luis Govea
Jose Esparza Rafael Ramirez
Bulfrano Damian Jose Mendoza
Perfecto Garcia Margarito Jiminez-Salgado
Emeterio Plascencia Regino Raniirez.
Hector Cordova Francisco Escobedo-Martinez
Jose Esparza Sr. Alfonso Murillo
Jesus Carranza Bledi Canino
Brian Mosley Lawerence R. Olivas, Jr.
Gonzalo Oliveros lgnacio Ceron
Bulmaro Perez Margarita Vergara
Luis J. Cardenas Rodrigo Hurtado
Michel Baptiste Armando Ortega
Otto Colocho Gardell Torres
Emiliano Diaz Nicols Fernandez
Manuel Rodriguez Eleasar Sanchez
Rodrigo Lopez Bonel Ulysse
Wenceslao Cruz-Torrez Antonio Guardado
Trinidad Cintora Maria Cortez
Patricio Rodriguez Augustin Sanchez
Pedro Arreola Maria Guadalupe Valdovinos
Silvestre Gonzalez Reyna Murillo
Jose Rodriguez Luz Maria Tavares
Cirilo Guzman Jean Daniel Sanon
Tiburcio Salinas Jose G. Santillan
Ricardo Alcaraz Gustavo Hernandez
Pantaleon Rodriguez Maria Rosario Valdovinos
Joaquin Bahena Raul Perez
Victor Feliciano Efren Delgado-Arollo
Ramiro Dominguez Israel Abonce
Rosendo Resendez Jose A. Vasquez
Guadalupe (Jorge) Salinas Luis A. Buther Oyola
HOMAK MFG. CO. 9
Hermino Carlos Angel Herrera
Javier Briones Bardomiano Gomez
Roberto Fl ores Ruben Moreno Arredondo
Reyes Ruiz Douglas Guyette
Lucas Serrano Edward Rios
Raul Montoya Juan Gomez
lgnacio Rivas Morgan Gonzalez
Jesus Gonzalez Matthew Wilkinson
Moises Garcia Ancelmo Saucedo