Kay Industries, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1974

209 N.L.R.B. 84 (N.L.R.B. 1974)

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kay Industries , Inc. and Joseph Dominick. Case
26-CA-4820
February 15, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PFNEI.I.O
Upon a charge and amended charges filed on
August 6. August 22. and September 17, 1973,
respectively, by Joseph Dominick, an Individual,
herein called the Charging Party, and duly served on
Kay Industries, Inc., herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
26, issued a complaint on September 21, 1973,
against Respondent, alleging that Respondent had
engaged 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, amended charges, complaint, and
notice of hearing before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that (1) on an
unknown date between April 9 and June 13, 1973,
the Respondent at its Centerville, Tennessee, plant,
solicited and secured from an employee a revocation
of a dues-deduction authorization in favor of Local
263 of the Stove, Furnace & Allied Appliance
Workers International Union of North America,
AFL-CIO, herein called the Union: (2) on an
unknown date in June 1973, the Respondent interro-
gated an employee concerning his union membership
and protected, concerted activities: and (3) on or
about June 19, 1973, at its Centerville, 'Iennessee,
plant, the Respondent discharged the Charging
Party, its employee, because he engaged in union or
protected, concerted activities. By the aforesaid acts
described above, the complaint alleges that the
Respondent has violated Section 8(a)(1) and (3) of
the Act. The Respondent failed to file an answer to
the complaint.
On October 15, 1973, counsel for the General
Counsel filed directly with the Board a motion for
summary judgment ybased upon the Respondent's
failure to file a timely answer as required by the
Board's Rules and Regulations. Subsequently, on
October 23, 1973, the Board issued an order
transferring the proceeding to the Board and a notice
to show cause why the General Counsel's motion for
I Radnut fret Paragon De Puerto Rico, Inc. 198 \ LR B No 76
summary judgment should not be granted. Respon-
dent did not file a response to notice to show cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 Regula-
tions, 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
allegation in the complaint not specifically denied
or explained in an answer 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 served on the
Respondent specifically state that unless an answer is
filed to the complaint within 10 days from the service
thereof "all of the allegations of the Complaint shall
be deemed to be admitted to be true and shall he so
found by the Board." Further, according to the
motion for summary judgment, on September 26,
1973. the Acting Regional Director sent the Respon-
dent a copy of a letter, addressed to the Respon-
dent's attorney, confirming a telephone conversation
in which the attorney announced his withdrawal
from the case and notifying the Respondent that a
motion for summary judgment would be filed if an
answer were not filed by the due date of October 4,
1973. To date the Respondent has failed to file an
answer to the complaint and, has not filed a response
to our notice to show cause within 10 days from the
service of the complaint, or at any other time. No
good cause for the failure to file an answer having
been shown, in accordance with the rule set forth
above, the allegations of the complaint herein are
deemed to be admitted and are found to be true.' We
shall, accordingly, grant the motion for summary
judgment.
209 NLRB No. 9
KAY INDUSTRIES, INC. 85
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation, has an office and place
of business in Centerville, Tennessee, where it is
engaged in the manufacture, sale, and distribution of
mobile homes. Since it commenced business opera-
tions on or about April 1, 1973, the Respondent has
purchased and received goods valued in excess of
$50,000 directly from points located outside the State
of Tennessee. and, during the same period of time, it
has sold and shipped goods valued in excess of
$50,000 directly to points located outside the State of
Tennessee.
We find, on the basis of the foregoing. that
Respondent 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.
11. THE LABOR ORGANIZATION INVOLVED
Local 263 of the Stove, Furnace & Allied Appli-
ance Workers International Union of North Ameri-
ca, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. IHE UNFAIR LABOR PRA('TiCIS
A. The Independent 8(a)(1) Violations
On an unknown date between April 9 and June 19,
1973, at its Centerville, Tennessee, plant, the Respon-
dent. by its supervisor and agent, Clarence Floyd.
solicited and secured from an employee a revocation
of a union dues-deduction authorization. On an
unknown date in June 1973, the Respondent, by the
aforesaid Clarence Floyd, interrogated an employee
concerning his union membership and activities.
Accordingly, we find that, by the aforesaid con-
duct, the Respondent has 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 has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)( I) of the Act.
B. The 8(a)(3) and (1) Violations
On or about June 19, 1973, at its Centerville,
Tennessee, plant, the Respondent discharged its
employee, Joseph Dominick, because said employee
engaged in union or protected, concerted activities.
Accordingly, we find that the Respondent, by the
aforesaid conduct, discriminated in regard to the
terms and conditions of employment of its employ-
ees, thereby discouraging membership in a labor
organization, and that by such conduct the Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act.
IV. 'IHE CFFFCT OT THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described 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 com-
merce.
V. I HE REMLDY
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 affirmative action designed to effectuate
the policies of the Act.
Since we have found that the Respondent discrimi-
natorily discharged employee Joseph Dominick, we
shall order that the Respondent offer him immediate
and full reinstatement 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 privileges, and make him whole for any
loss of earnings he may have suffered by reason of
such discrimination, by payment of a sum of money
equal to that which he 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
Respondent were of a character which go to the very
heart of the Act, we shall order the Respondent to
cease and desist from infringing in any other manner
upon the rights of employees guaranteed by Section 7
of the Act.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Kay Industries, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 263 of the Stove, Furnace & Allied
Appliance Workers International Union of North
America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By the conduct enumerated in section III,
Respondent has interfered with, restrained, coerced,
and discriminated against, and is interfering with,
coercing, restraining, and discriminating against,
employees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the
Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that Respondent, Kay
Industries, Inc., Centerville, Tennessee, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on
behalf of Local 263 of the Stove, Furnace & Allied
Appliance Workers International Union of North
America, AFL-CIO, or any other labor organization,
by discharging or otherwise discriminating in regard
to hire or tenure of employment of any of its.
employees because of their union or protected,
concerted activities.
(b) Soliciting and securing from employees revoca-
tion of union dues-deduction authorizations.
(c) Interrogating employees concerning their union
membership or protected, concerted activities.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise 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) Offer Joseph Dominick immediate and full
reinstatement to his former job at the Respondent's
plant or, if this job no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole
for any loss of earnings suffered by reason of
Respondent's discrimination against him in the
manner set forth in the section herein entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Centerville, Tennessee, plant copies
of the attached notice marked "Appendix." 2 Copies
of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for. 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
2 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or
activities on behalf of Local 263 of the Stove,
Furnace & Allied Appliance Workers Interna-
tional Union of North America, AFL-CIO, or
any other labor organization, by discharging or
otherwise discriminating in regard to hire or
tenure of employment of any of its employees
because of their union or protected, concerted
activities.
WE WILL NOT solicit and secure from employ-
ees revocation of union dues-deduction authori-
zations.
WE WILL NOT interrogate employees concern-
ing their union membership or protected, concert-
ed activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL offer to Joseph Dominick immediate
and full reinstatement to his former job at our
KAY INDUSTRIES , INC. 87
plant or, if that job no longer exists, to a
substantially equivalent position , without preju-
dice to his seniority or other rights and privileges
previously enjoyed , and WE WILL make him
whole for any loss of earnings suffered by reason
of the discrimination practiced against him.
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 compli-
ance with its provisions may he directed to the
KAY INDI SI RIES, INC. Board's Office, Clifford Davis Federal Building,
(Employer) Room 746. 167 North Main Street , Memphis,
Tennessee 38103, Telephone 901-534-3161.
Dated By
(Representative) (Title)