Lite Flight, Inc.

National Labor Relations Board - Board Decisions

May 21, 1984

270 N.L.R.B. 815 (N.L.R.B. 1984)

LITE FLIGHT, INC.
Lite Flight, Inc. and Jump Shack, Inc. and John B.
Sherman and Chicago and Central States Joint
Board, Amalgamated Clothing and Textile
Workers Union, AFL-CIO. Case 7-CA-21990
21 May 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
Upon a charge filed by the Union 14 April 1983
and an amended charge filed 20 May 1983, the
General Counsel of the National Labor Relations
Board issued a complaint 31 May 1983 against Lite
Flite, Inc. and Jump Shack, Inc. and John B. Sher-
man, collectively called the Respondent, alleging
violations of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act. Although properly
served copies of the charge, amended charge, and
complaint, the Respondent has failed to file an
answer. 1
On 19 September 1983 the General Counsel filed
a Motion for Summary Judgment. On 23 Septem-
ber 1983 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 allegations in
the motion are therefore undisputed.
The National Labor Relations Board has delegat-
ed 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 Regula-
tions provides that the allegations in the complaint
shall be deemed admitted if an answer is not filed
with 10 days from the service of the complaint,
unless good cause is shown. The complaint states
that unless an answer is filed within 10 days of
service "all the allegations in the complaint shall be
deemed to be admitted to be true and shall be so
found by the Board." The undisputed allegations in
the Motion for Summary Judgment disclose that,
by letters dated 29 June and 2 September 1983, the
General Counsel's representatives notified the Re-
L A copy of the charge was served by certified mail on Lite Flite, Inc.
A copy of the amended charge was served 20 May 1983, by certified
mail, on Lite Flite, Inc., Jump Shack, Inc., and John B. Sherman. On 24
May 1983 a copy of the amended charge was served by certified mail on
Sherman at his home address and returned to the Regional Office marked
"refused." Also on 24 May 1983 a copy of the amended charge was
served by ordinary mail on Sherman; this letter has not been returned to
the Regional Office. On 1 September 1983 a copy of the amended charge
was personally served on Lite Flite, Inc. and Sherman. A copy of the
complaint was served by certified mail on the Respondent and also by
ordinary mail on Sherman. Sherman's copy of the complaint served by
certified mail was returned to the Regional Office marked "unclaimed";
the copy sent by ordinary mail has not been returned to the Regional
Office.
270 NLRB No. 111
spondent that unless an answer was received by 11
July and 9 September 1983, respectively, a Motion
for Summary Judgment would be filed.
On 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.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Lite Flite and Jump Shack, Michigan corpora-
tion, each maintains its principal office and place of
business at 29706 Grand River, in Farmington
Hills, Michigan (the Farmington Hills facility),
where each is engaged either in the manufacture
and/or sale and distribution of parachutes, para-
chute harnesses, containers, sports bags, and related
products. 2
During the year ending 31 December 1982, Lite
Flite manufactured, sold, and distributed at its
Farmington Hills facility products valued in excess
of $100,000 of which products valued in excess of
$50,000 were furnished to Jump Shack. During the
same period, Jump Shack had gross revenues from
nonretail and retail sales in excess of $50,000 and
purchased materials valued in excess of $50,000,
and had the materials transported and delivered
from outside Michigan directly to its Farmington
Hills facility.
By virtue of John B. Sherman's being personally
involved in the acts and conduct referred to in "II.
Alleged Unfair Labor Practices," below, he is an
employer within the meaning of Section 2(2) of the
Act. 3
We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and that Chicago and
Central States Joint Board, Amalgamated Clothing
and Textile Workers Union, AFL-CIO, the Union,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Employer Relationship and the Union's
Representative Status
At all times material herein Lite Flite and Jump
Shack have been affiliated business enterprises with
common officers, ownership, directors, manage-
2 Jump Shack maintains another facility in the State of Florida but
only its Farmington Hills facility is involved in this proceeding.
5 Member Dennis would not find John B. Sherman personally liable as
she believes the allegations of the complaint are legally insufficient to
warrant such a finding. See generally Contris Packing Co., 268 NLRB 113
(1983), and cases cited therein.
815
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, and a supervision; have formulated and ad-
ministered a common labor policy affecting em-
ployees of said operations; have shared common fa-
cilities and equipment; have provided services for
each other; and have interchanged personnel with
each other; and Lite Flite has sold virtually all its
produced goods to Jump Shack. Accordingly, we
find that Lite Flite and Jump Shack constitute a
single integrated business enterprise and a single or
joint employer within the meaning of the Act, and
that by virtue of their substantially identical man-
agement, labor and personnel policies, business pur-
poses, operations, equipment, and supervision of
employees of Lite Flite, at their shared Farmington
Hills facility, and by virtue of the acts and conduct
described below are alter egos of each other.
At all times material John B. Sherman has been
the president of Lite Flite, and the president or
vice president of Jump Shack, and E. Diane Sher-
man has been the secretary-treasurer of Lite Flite,
and the president or vice president of Jump Shack.
Each of the Shermans is an agent of the Respond-
ent and a supervisor within the meaning of Section
2(11) of the Act.
The Union was certified 23 March 1983 as the
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time production
employees, including cutters, laborers, sewers
and inspectors employed by Lite Flite, Inc., at
the Farmington Hills facility; but excluding all
guards and supervisors as defined in the Act.
The Union continues to be the exclusive repesenta-
tive under Section 9(a) of the Act.
B. The 8(a)(1) Violations
1. About 7 and 11 January 1983 the Respond-
ent's agent John B. Sherman informed Lite Flite's
employees that it would be futile for them to select
the Union as their bargaining representative be-
cause the Farmington Hills facility would never be
unionized, or would not operate as a unionized fa-
cility. Also on the latter date, Sherman coercively
interrogated Lite Flite's employees concerning
their membership in, sympathies for, and activities
on behalf of the Union; attempted to poll them
concerning their sympathies for and support of the
Union without providing the legally required assur-
ances and safeguards; threatened them with plant
closure and subcontracting of bargaining unit work
if they selected the Union as their bargaining repre-
sentative; created the impression of surveillance of
their union activities by stating to them that the
Respondent was aware of which employees were
behind the Union's organizing campaign; and at-
tempted to undermine the Union's organizing cam-
paign by soliciting grievances from employees and
implying that said grievances would be favorably
resolved and by suggesting to them that they nego-
tiate a collective-bargaining agreement directly
with the Respondent.
2. About 11 January 1983 Sherman attempted to
gerrymander the bargaining unit by declaring two
bargaining unit employees to be supervisors.
3. About 24 January 1983 Sherman informed an
employee of Lite Flite that the shop was being
closed and bargaining unit work was being sent
south because of problems the Respondent was
having with the National Labor Relations Board as
a result of the employees' attempts to have the
Union become their bargaining representative.
4. About 10 February 1983 Sherman threatened
plant closure by implying to the unit employees
that continued production at the Farmington Hills
facility was contingent on the employees abandon-
ing their support of the Union.
We find that the Respondent, by its conduct de-
scribed in paragraphs 1 through 4, violated Section
8(a)(1) of the Act.
C. The 8(a)(3) and (1) Violations
About 24 January and 29 April 1983, respective-
ly, the Respondent laid off all employees in the
bargaining unit. In between those dates, about 10
February 1983, it diverted bargaining unit work
from the Farmington Hills facility to a plant in
North Carolina.
The Respondent laid off the employees and di-
verted bargaining unit work because employees in
the bargaining unit supported and assisted the
Union and engaged in concerted activities for the
purpose of collective bargaining and other mutual
aid and protection, and in order to discourage em-
ployees from engaging in such activities.
Accordingly, we find that the Respondent, by
this conduct, discriminated against the bargaining
unit employees in violation of Section 8(a)(3) and
(1) of the Act.
D. Refusals to Bargain
Since about 23 March 1983 the Respondent,
through John B. Sherman, its agent, has refused to
meet and bargain with the Union with respect to
wages, hours, and other terms and conditions of
employment of the employees in the bargaining
unit, despite written requests for such bargaining
dated 23 and 30 March and 27 April 1983.
The Respondent has also failed and refused to
provide the Union, as it requested by letter dated
23 March 1983, with information necessary for, and
relevant to, the Union's performance of its function
816
LITE FLIGHT, INC.
as the exclusive collective-bargaining representative
of the bargaining unit employees. The requested in-
formation included, inter alia, the birth dates,
hiring dates, proper classifications, dates of last
wage increase, and earnings histories of the unit
employees.
Finally, about 29 April 1983, the Respondent laid
off the bargaining unit employees without prior
notice to the Union and without affording it an op-
portunity to meaningfully negotiate and bargain
over the layoff and its effects on the unit employ-
ees.4
The Respondent engaged in these refusals to bar-
gain in order to undermine the Union's status as
the exclusive collective-bargaining representative
of the employees in the bargaining unit.
We find that this conduct by the Respondent
constitutes an unlawful refusal to bargain in viola-
tion of Section 8(aXS) and (1) of the Act.
CONCLUSIONS OF LAW
1. Lite Flite, Inc., Jump Shack, Inc., and John B.
Sherman are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Chicago and Central States Joint Board,
Amalgamated Clothing and Textile Workers
Union, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Lite Flite, Inc. and Jump Shack, Inc. consti-
tute a single integrated business enterprise and a
single or joint employer within the meaning of the
Act and are alter egos of each other.
4. John B. Sherman and E. Diane Sherman are
agents of the Respondent and supervisors within
the meaning of Section 2(11) of the Act.
5. At all times material herein the Union has
been and now is the exclusive bargaining represent-
ative of all employees in the following unit appro-
priate for the purpose of collective bargaining with
respect to wages, hours, and other terms and con-
ditions of employment:
All full-time and regular part-time production
employees, including cutters, laborers, sewers
and inspectors employed by Lite Flite, Inc. at
the Farmington Hills facility; but excluding all
guards and supervisors as defined in the Act.
6. By informing its employees that it would be
futile for them to select the Union as their bargain-
ing representative by stating that the Farmington
Hills facility would never be unionized or would
not operate as a unionized facility; by coercively
4 In view of the finding that the Respondent violated Sec. 8(aX3) by
laying off its employees, Member Hunter finds it unnecessary to pass on
the 8(aX5) allegation.
interrogating them concerning their membership in,
sympathies for, and activities on behalf of the
Union; by attempting to poll them concerning their
support of the Union without providing the legally
required assurances and safeguards; by threatening
them with plant closure and subcontracting of bar-
gaininig unit work if they selected the Union as
their bargaining representative; by creating the im-
pression of surveillance of their union activities by
stating to them that the Respondent was aware of
which employees were behind the Union's organiz-
ing campaign; by attempting to undermine the
Union's organizing campaign by soliciting griev-
ances from the employees and implying that said
grievances would be favorably resolved and by
suggesting to them that they negotiate a collective-
bargaining agreement directly with the Respond-
ent; by attempting to gerrymander the bargaining
unit by declaring two bargaining unit employees to
be supervisors; by informing an employee that the
shop was being closed and bargaining unit work
was being sent south because of problems the Re-
spondent was having with the National Labor Re-
lations Board as a result of the employees' attempts
to have the Union become their bargaining repre-
sentative; and by threatening plant closure by im-
plying to employees that continued production at
the Farmington Hills facility was contingent on the
employees' abandoning their support of the Union,
the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the
Act.
7. By laying off all employees in the bargaining
unit about 24 January 1983 and 29 April 1983, and
by diverting bargaining unit work from the Farm-
ington Hills facility to a plant in North Carolina
about 10 February 1983, because its employees sup-
ported and assisted the Union and engaged in con-
certed activities for the purpose of collective bar-
gaining and other mutual aid and protection, and in
order to discourage employees from engaging in
such activities, the Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(aX3) and (1) of the Act.
8. By refusing since about 23 March 1983 to
meet and bargain with the Union, as requested,
with respect to wages, hours, and other terms and
conditions of employment of employees in the bar-
gaining unit; by failing and refusing since that date
to provide the Union, as it requested by letter
dated 23 March 1983, with information necessary
for, and relevant to, the Union's performance of its
function as the exclusive collective-bargaining rep-
resentative of the bargaining unit employees; and
by laying off bargaining unit employees about 29
April 1983, without prior notice to the Union and
817
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without affording it an opportunity to meaningfully
negotiate and bargain over the layoff and its effects
on the unit employees-all in order to undermine
the Union's status as the exclusive collective-bar-
gaining representative of the employees in the bar-
gaining unit-the Respondent has engaged in unfair
labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(1), (3), and (5) of the Act, we shall order
it to cease and desist therefrom, and to take certain
affirmative action designed to effectuate the pur-
poses of the Act.
With respect to the Respondent's unlawful diver-
sion of bargaining unit work from its Farmington
Hills facility to a plant in North Carolina, we shall
order the Respondent to return the diverted bar-
gaining unit work to the Farmington Hills facility.
With respect to the Respondent's unlawful layoff
of the unit employees about 24 January 1983 and
29 April 1983, respectively, we shall order the Re-
spondent to recall these employees to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or other rights or privileges previously
enjoyed, and to make them whole for any loss of
earnings and other benefits resulting from their un-
lawful layoffs, in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in Florida Steel Corp., 231 NLRB 651
(1977). 5
As for the Respondent's unlawful refusal to meet
and bargain with the Union, we shall order the Re-
spondent, on request, to bargain with the Union re-
garding wages, hours, and other terms and condi-
tions of employment of the unit employees and, if
an understanding is reached, to embody the under-
standing in a signed agreement. We shall also order
the Respondent to provide the Union with the in-
formation it requested 23 March 1983 and, on re-
quest, to bargain with the Union regarding the 29
April 1983 layoff of unit employees and its effect
on those employees and, if an understanding is
reached, to embody the understanding in a signed
agreement.
ORDER
The National Labor Relations Board orders that
the Respondent, Lite Flite, Inc. and Jump Shack,
Inc. and John B. Sherman, Farmington Hills,
5 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Informing its employees that it would be
futile for them to select Chicago and Central States
Joint Board, Amalgamated Clothing and Textile
Workers Union, AFL-CIO, or any other labor or-
ganization, as their bargaining representative by
stating that the Farmington Hills facility would
never be unionized or would not operate as a
unionized facility.
(b) Interrogating its employees concerning their
membership in, sympathies for, and activities on
behalf of the Union.
(c) Attempting to poll its employees concerning
their support of the Union without providing the
legally required assurances and safeguards.
(d) Threatening its employees with plant closure
and subcontracting of bargaining unit work if they
select the Union as their bargaining representative.
(e) Creating the impression of surveillance of its
employees' union activities by stating to them that
it was aware of which employees were behind the
Union's organizing campaign.
(f) Attempting to undermine the Union's organiz-
ing campaign by soliciting grievances from its em-
ployees and implying that said grievances would be
favorably resolved and by suggesting to them that
they negotiate a collective-bargaining agreement
directly with the Respondent.
(g) Attempting to gerrymander the bargaining
unit described below by declaring bargaining unit
employees to be supervisors.
(h) Informing employees that the shop was being
closed and bargaining unit work was being sent
south because of problems it was having with the
National Labor Relations Board as a result of the
employees' attempts to have the Union become
their bargaining representative.
(i) Threatening plant closure by implying to em-
ployees that continued production at the Farming-
ton Hills facility was contingent on the employees'
abandoning their support of the Union.
(j) Discriminating against its employees by laying
off all employees in the bargaining unit described
below, and diverting bargaining unit work from the
Farmington Hills facility to a plant in North Caro-
lina, because its employees supported and assisted
the Union and engaged in concerted activities for
the purpose of collective bargaining and other
mutual aid and protection, and in order to discour-
age employees from engaging in such activities.
(k) Refusing to meet and bargain with the Union
as the exclusive representative of its employees in
the appropriate bargaining unit described below
818
LITE FLIGHT, INC.
concerning their wages, hours, and other terms and
conditions of employment. The appropriate unit is:
All full-time and regular part-time production
employees, including cutters, laborers, sewers
and inspectors employed by Lite-Flite, Inc. at
the Farmington Hills facility; but excluding all
guards and supervisors as defined in the Act.
(1) Failing and refusing to provide the Union, on
request, with information necessary for, and rele-
vant to, the Union's performance of its function as
the exclusive collective-bargaining representative
of the bargaining unit employees.
(m) Laying off employees in the bargaining unit
without prior notice to the Union and without af-
fording the Union an opportunity to meaningfully
negotiate and bargain over the layoff and its effects
on the unit employees.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Return the bargaining unit work unlawfully
diverted from its Farmington Hills facility back to
its Farmington Hills facility.
(b) Recall the employees in the bargaining unit
who were laid off as a result of their union activi-
ties or the unlawful diversion of bargaining unit
work to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions of
employment, without prejudice to their seniority or
other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and
other benefits resulting from their layoffs in the
manner set forth in "The Remedy."
(c) On request, bargain in good faith with the
Union as the exclusive bargaining representative of
the employees in the bargaining unit regarding
their wages, hours, and other terms and conditions
of employment and, if an understanding is reached,
embody the understanding in a signed agreement.
(d) On request, provide the Union with the infor-
mation it requested 23 March 1983 or any other in-
formation which is relevant to its function as the
exclusive representative of the bargaining unit em-
ployees.
(e) On request, bargain in good faith with the
Union regarding the 29 April 1983 layoff of bar-
gaining unit employees and its effect on these em-
ployees and, if an understanding is reached,
embody the understanding in a signed agreement.
(f) Post at its facility in Farmington Hills, Michi-
gan, copies of the attached notice marked "Appen-
dix." 6 Copies of said notice, on forms provided by
6 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
the Regional Director for Region 7, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly 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 Respondent
to ensure that said notices are not altered, defaced,
or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT inform our employees that it
would be futile for them to select Chicago and
Central States Joint Board, Amalgamated Clothing
and Textile Workers Union, AFL-CIO, or any
other labor organization, as their bargaining repre-
sentative by stating that the Farmington Hills facili-
ty would never be unionized or would not operate
as a unionized facility.
WE WILL NOT interrogate our employees con-
cerning their membership in, sympathies for, and
activities on behalf of the Union.
WE WILL NOT attempt to poll our employees
concerning their support of the Union without pro-
viding the legally required assurances and safe-
guards.
WE WILL NOT threaten our employees with plant
closure and subcontracting of bargaining unit work
if they select the Union as their bargaining repre-
sentative.
WE WILL NOT create the impression of surveil-
lance of our employees' union activities by stating
to them that we were aware of which employees
were behind the Union's organizing campaign.
WE WILL NOT attempt to undermine the Union's
organizing campaign by soliciting grievances from
our employees and implying that said grievances
would be favorably resolved and by suggesting to
them that they negotiate a collective-bargaining
agreement directly with us.
819
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT attempt to gerrymander the bar-
gaining unit described below by declaring bargain-
ing unit employees to be supervisors.
WE WILL NOT inform employees that the shop
was being closed and bargaining unit work was
being sent south because of problems we were
having with the National Labor Relations Board as
a result of the employees' attempts to have the
Union become their bargaining representative.
WE WILL NOT threaten plant closure by implying
to employees that continued production at the
Farmington Hills facility is contingent on the em-
ployees' abandoning their support of the Union.
WE WILL NOT discriminate against our employ-
ees by laying off all employees in the bargaining
unit described below, and diverting bargaining unit
work from the Farmington Hills facility to a plant
in North Carolina, because our employee supported
and assisted the Union and engaged in concerted
activities for the purpose of collective bargaining
and other mutual aid and protection, and in order
to discourage employees from engaging in such ac-
tivities.
WE WILL NOT refuse to meet and bargain with
the Union as the exclusive representative of our
employees in the appropriate bargaining unit de-
scribed below concerning their wages, hours, and
other terms and conditions of employment. The ap-
propriate unit is:
All full-time and regular part-time production
employees, including cutters, laborers, sewers
and inspectors employed by Lite-Flite, Inc. at
the Farmington Hills facility; but excluding all
guards and supervisors as defined in the Act.
WE WILL NOT fail and refuse to provide the
Union, on request, with information necessary for,
and relevant to, the Union's performance of its
function as the exclusive collective-bargaining rep-
resentative of the bargaining unit employees.
WE WILL NOT lay off employees in the bargain-
ing unit without prior notice to the Union and
without affording the Union an opportunity to
meaningfully negotiate and bargain over the layoff
and its effects on the unit employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL return the bargaining unit work unlaw-
fully diverted from our Farmington Hills facility
back to our Farmington Hills facility.
WE WILL recall the employees in the bargaining
unit who were laid off as a result of their union ac-
tivities or the unlawful diversion of bargaining unit
work to their former jobs or, if those jobs no
longer exist, to substantially equivalent position of
employment, without prejudice to their seniority or
other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and
other benefits resulting from their layoffs, less any
net interim earnings, plus interest.
WE WILL, on request, bargain in good faith with
the Union as the exclusive bargaining representa-
tive of the employees in the bargaining unit regard-
ing their wages, hours, and other terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement.
WE WILL, on request, provide the Union with
the information it requested 23 March 1983 or any
other information which is relevant to its function
as the exclusive representative of the bargaining
unit employees.
WE WILL, bargain in good faith with the Union
regarding the 29 April 1983 layoff of bargaining
unit employees and its effect on those empoyees
and, if an understanding is reached, embody the
understanding in a signed agreement.
LITE FLITE, INC. AND JUMP. SHACK,
INC. AND JOHN B. SHERMAN
820