Machinery Repair Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1996

321 N.L.R.B. 851 (N.L.R.B. 1996)

851
321 NLRB No. 122
MACHINERY REPAIR INC.
1 This charge was amended on May 25, 1995.
2 A copy of the order vacating and setting aside settlement agree-
ment and amended complaint was served by certified mail. The re-
turn receipt was unsigned, but the postal service did not return the
document. A copy of the consolidated complaint was served by cer-
tified mail upon Respondent TSI at the residence of its president and
by regular mail on its attorney. The certified mail went unclaimed.
It is well established, however, that a failure to refuse and accept
delivery of certified mail will not be allowed to defeat the purposes
of the Act. E.g., American Gem Sprinkler Co., 316 NLRB 102 fn.
1 (1995). Furthermore, the copy of the consolidated complaint sent
to the attorney was never returned, and another copy of this docu-
ment was enclosed with the Region’s May 19, 1995 letter.
3 E.g., TPS/Total Property Services, 306 NLRB 633 fn. 2 (1992);
and Caribe Cleaning Services, 304 NLRB 932 fn. 3 (1991).
Machinery Repair Incorporated and Turbine Sup-
port, Inc., alter egos and Joint Employers and
District No. 9, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO.
Cases 14–CA–23173 and 14–CA–23539
July 26, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon a charge filed by District No. 9, International
Association of Machinists and Aerospace Workers
AFL–CIO (the Union) on August 9, 1994, and an
amended charge filed on September 28, 1994, the Gen-
eral Counsel of the National Labor Relations Board
issued a complaint on September 30, 1994, in Case
14–CA–23173, alleging that Respondents Machinery
Repair Incorporated (Respondent MRI) and Turbine
Support, Inc. (Respondent TSI), alter egos and joint
employers, had engaged in certain unfair labor prac-
tices in violation of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act. On October 22, 1994,
Respondent TSI filed an answer admitting in part and
denying in part the allegations in the complaint.
On November 25, 1994, the Regional Director for
Region 14 approved an informal settlement agreement
in Case 14–CA–23173. Both Respondents were parties
to the settlement. The agreement expressly stated that
‘‘[a]pproval of this Agreement by the Regional Direc-
tor shall constitute withdrawal of any Complaint(s) and
Notice of Hearing heretofore issued in this case, as
well as any answer(s) filed in response.’’ On February
8, 1995, the Regional Director for Region 14 issued an
order vacating and setting aside settlement agreement,
amended complaint and notice of hearing, renewing al-
legations in the original complaint and further alleging
that the Respondents had refused to comply with the
terms of the settlement agreement.
On March 17, 1995, the Union filed a charge against
the Respondents in Case 14–CA–23539.1 On May 2,
1995, the General Counsel issued an order consolidat-
ing cases, consolidated complaint (amended complaint)
and notice of hearing in Cases 14–CA–23173 and 14–
CA–23539. The amended complaint alleged that Re-
spondent MRI and Respondent TSI were alter egos or
a single employer. Respondent MRI filed an answer to
the amended complaint. Although properly served cop-
ies of the amended complaint and the consolidated
complaint, Respondent TSI failed to file an answer.
On October 11, 1995, Respondent MRI, the Union,
and the General Counsel entered into a formal settle-
ment stipulation. The stipulation only settled the unfair
labor practice allegations against Respondent MRI. It
did not settle the unfair labor practice allegations
against Respondent TSI. On November 21, 1995, the
Board approved the settlement stipulation and issued a
Decision and Order pursuant to the provisions of the
stipulation.
On December 5, 1995, the General Counsel filed a
Motion for Default Summary Judgment against Re-
spondent TSI, with attached exhibits. On December 14,
1995, 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. Respondent TSI
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
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, both the amend-
ed complaint and the consolidated complaint affirma-
tively note that unless an answer is filed within 14
days of service, all the allegations in the complaint
shall be considered admitted. Further, the undisputed
allegations in the Motion for Default Summary Judg-
ment disclose that the Region, by letters dated March
29 and May 19, 1995, notified Respondent TSI that
unless an answer was received by a specified date, a
Motion for Summary Judgment would be filed.2
Although the Respondent TSI filed an answer to the
original complaint in Case 14–CA–23173, that answer
was withdrawn pursuant to the express terms of the in-
formal settlement agreement executed by the parties on
November 25, 1994, and was not thereafter revived by
the Regional Director’s order vacating and setting
aside the agreement. Duro Pleating, 317 NLRB 614
(1995). Only Respondent MRI filed an answer to the
amended complaint. Although the Board has held that
an answer filed by one alleged single employer may
preclude summary judgement against another non-
answering alleged single employer,3 we find this
precedent inapposite to the circumstances here, where
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the answering Respondent MRI subsequently entered
into a formal settlement stipulation consenting to the
entry of a consent decree against it, but explicitly not
settling allegations as to Respondent TSI. In the formal
settlement, Respondent MRI waived its right to file an
answer, and thus there was no longer a Respondent
MRI answer on which Respondent TSI could rely.
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 Summary Judgment
against Respondent TSI.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
Respondent TSI, a Missouri corporation, with its of-
fice and place of business in St. Louis, Missouri, is en-
gaged in the service and repair of industrial equipment
including steam turbines. During the 12-month period
ending January 31, 1995, Respondent TSI, in conduct-
ing its business operations, performed services valued
in excess of $50,000 in States other than the State of
Missouri. We find that Respondent TSI is an employer
engaged in commerce within the meaning 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.
At all material times, Machinery Repair Incorporated
(Respondent MRI), has exercised control over the
labor relations policy of Respondent TSI and adminis-
tered a common labor policy with Respondent TSI for
the employees of Respondent TSI. At all material
times, Respondent MRI and Respondent TSI have been
joint employers of the employees of Respondent TSI.
About February 11, 1994, Respondent TSI was es-
tablished by Respondent MRI as a subordinate instru-
ment to and a disguised continuation of Respondent
MRI. At all material times, Respondent MRI and Re-
spondent TSI have been affiliated business enterprises
with common management and supervision; have for-
mulated and administered a common labor policy;
have shared common premises and facilities; have pro-
vided services for and made sales to each other; have
interchanged personnel with each other; have function-
ally integrated operations; and have held themselves
out to the public as single-integrated business enter-
prises. We find that Respondent TSI and Respondent
MRI are, and have been at all material times, alter
egos and a single employer within the meaning of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of Respondent MRI and
Respondent TSI (hereinafter the Respondent) constitute
a unit appropriate for bargaining within the meaning of
Section 9(b) of the Act:
All repair machinists, repair mechanics, and all
other production and maintenance employees, EX-
CLUDING office clerical and professional em-
ployees, guards, and supervisors as defined in the
Act.
Since about April 1, 1987, the Union has been the des-
ignated exclusive collective-bargaining representative
of the unit. Since about April 1, 1987, the Union has
been recognized as the representative by Respondent
MRI, formerly known as CDM Repair Corporation.
This recognition has been embodied in successive col-
lective-bargaining agreements, the most recent of
which was effective from April 1, 1992, until April 1,
1995.
On about February 11, 1994, the Respondent laid
off all current unit employees. Since about that same
date, the Respondent changed its employees’ wage
rates and health insurance coverage and otherwise
failed to maintain the terms and conditions of employ-
ment as provided in the collective-bargaining agree-
ment with the Union. The Respondent engaged in this
conduct because the employees of the Respondent
joined and assisted the Union, engaged in concerted
activities, and to discourage employees from engaging
in such activities. Furthermore, the Respondent en-
gaged in this conduct, directly involving terms and
conditions of employment which are mandatory sub-
jects of bargaining, without the Union’s consent. Ac-
cordingly, the Respondent violated Section 8(a)(5), (3),
and (1) of the Act.
Since about February 11, 1994, the Respondent has
failed and refused to recognize and bargain with the
Union as the exclusive bargaining representative of the
unit employees and has failed to honor and abide by
the terms and conditions of employment as set forth in
the collective-bargaining agreement. Furthermore, on
about that same date, Respondent, by Plant Manager
Donald Stroup Jr., bypassed the Union and dealt di-
rectly with unit employees by offering them employ-
ment at terms and conditions different than those in the
collective-bargaining agreement. By such conduct, the
Respondent has violated Section 8(a)(5) and (1) of the
Act.
On about November 21, 1994, laid-off unit employ-
ees Charles Boyer, Arnold Schmidt, Paul Schulte, and
Larry Seay were reinstated pursuant to the terms of a
settlement agreement in Case 14–CA–23173. Since
about December 2, 1994, Respondent has laid off unit
employees, including Boyer, Schmidt, Schulte, and
Seay, in a manner contrary to the provisions of the
collective-bargaining agreement and because the
named employees joined and assisted the Union and
engaged in concerted activities, and to discourage em-
ployees from engaging in these activities. These lay-
offs violated Section 8(a)(5), (3), and (1) of the Act.
853MACHINERY REPAIR INC.
By letters dated December 7 and 16, 1994, and Jan-
uary 25, 1995, and by facsimile mail dated February
8, 1995, the Union has requested that the Respondent
furnish the Union with information that, with the ex-
ception of item 34 in the January 25 letter, is nec-
essary for, and relevant to, the Union’s performance of
its duties as the exclusive collective-bargaining rep-
resentative of unit employees. The Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by failing and
refusing to furnish the Union with the requested infor-
mation.
About January 20, 1995, the Respondent closed its
facility and laid off all employees in the unit without
giving notice to the Union and without affording the
Union an opportunity to bargain over the effects of the
closing and the resulting layoffs. On about January 25,
1995, the Union, by letter, requested that the Respond-
ent bargain over the effects on the unit of the decision
to close its facility and the resulting layoffs. The Re-
spondent has since failed and refused to bargain, in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By laying off unit employees on February 11 and
again on December 2, 1994, and by changing unit em-
ployees’ wage rates and heath insurance coverage and
otherwise failing to maintain the terms and conditions
of employment provided in a collective-bargaining
agreement with the Union, the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5), (3), and (1) and
Section 2(6) and (7) of the Act.
2. By refusing on and after February 11, 1994, to
bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, by bypassing the Union and dealing directly with
unit employees when offering them employment at
terms and conditions different than those in their col-
lective-bargaining agreement, by refusing the Union’s
requests for relevant bargaining information, and by
closing its facility and laying off all unit employees
without notice to the Union and without affording the
Union an opportunity to bargain about the effects of
the closure and the resulting layoffs, the Respondent
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has 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 make whole those
employees whom it unlawfully laid off on February 11
and on December 2, 1994, for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest to be computed in
the manner set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987). We shall also order the Re-
spondent to remove from its files any reference to
these layoffs and to notify the affected employees in
writing that this has been done and that the layoffs will
not be used against them in any way.
We shall order the Respondent to provide, on re-
quest by the Union, the relevant bargaining informa-
tion that the Union previously requested on December
7 and 16, 1994, and January 25 and February 8, 1995.
We shall further order the Respondent to make whole
unit employees for its unlawful failure to continue in
effect all the terms and conditions of the collective-
bargaining agreement, as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), with interest as pro-
vided in New Horizons, supra. The Respondent shall
also make unit employees whole for any losses result-
ing from its failure to make required benefit fund pay-
ments, as prescribed in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981). The method for determining the addi-
tional amounts owed to the benefit funds is specified
in Merryweather Optical Co., 240 NLRB 1213, 1216
fn. 7 (1979).
Inasmuch as the General Counsel does not contend
that the Respondent’s decision to close its St. Louis,
Missouri facility and the resulting January 20, 1995
layoff of all unit employees was unlawful, we shall not
order the reopening of the facility or the reinstatement
of those employees. To remedy the Respondent’s un-
lawful refusal to bargain about the effects of the clos-
ing and the layoffs, however, we shall order the Re-
spondent, on request, to bargain with the Union about
the effects. We shall also require the Respondent to
pay unit employees laid off or discharged because of
the closure their normal wages in accordance with the
provisions to Transmarine Navigation Corp., 170
NLRB 389 (1969). Thus, we shall order the Respond-
ent to pay unit employees backpay at the appropriate
contractual wage rate when last in the Respondent’s
employ from 5 days after the date of this Decision and
Order until the earliest of the following conditions: (1)
the date the Respondent bargains to agreement with
the Union on the effects on unit employees of the clos-
ing of the Respondent’s facility; (2) a bona fide im-
passe in bargaining; (3) the failure of the Union to re-
quest bargaining within 5 days of the Respondent’s no-
tice of its desire to bargain with the Union; (4) the
subsequent failure of the Union to bargain in good
faith; but in no event shall the sum paid to any of
these employees exceed the amount the employee
would have earned as wages from the date on which
the Respondent closed its facility to the time the em-
ployee secured equivalent employment elsewhere, or
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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
the date on which the Respondent shall have offered
to bargain, whichever occurs sooner; provided, how-
ever, that in no event shall this sum be less than these
employees would have earned for a 2-week period at
the appropriate contractual wage rate when last in the
Respondent’s employ. Interest on all sums shall be
paid in the manner prescribed in New Horizons for the
Retarded, supra. Finally, in view of the Respondent’s
closure of its facility, we shall require that the Re-
spondent duplicate and mail, at its own expense, a
copy of the remedial notice to all current employees
and former employees employed by the Respondent at
any time since February 11, 1994.
ORDER
The National Labor Relations Board orders that the
Respondent, Turbine Support, Inc., an alter ego of and
joint employer with Machinery Repair Incorporated,
St. Louis, Missouri, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discouraging membership in District No. 9,
International Association of Machinists and Aerospace
Workers, AFL–CIO, or in any other labor organization,
by:
(1) Laying off its unit employees in order to avoid
its collective-bargaining obligations or in a manner
contrary to the provisions of the collective-bargaining
agreement.
(2) Changing its employees’ wage rates and health
insurance coverage and otherwise failing to maintain
the terms and conditions of employment as provided in
the collective-bargaining agreement.
(b) Refusing to bargain collectively with District No.
9, International Association of Machinists and Aero-
space Workers, AFL–CIO as the exclusive representa-
tive of employees in an appropriate bargaining unit by:
(1) Failing to continue in effect all the terms and
conditions of a collective-bargaining agreement for
unit employees.
(2) Bypassing the Union and dealing directly with
unit employees by offering them terms and conditions
of employment different from those in the collective-
bargaining agreement.
(3) Laying off unit employees in a manner contrary
to the provisions of the collective-bargaining agree-
ment.
(4) Failing and refusing to furnish the Union with
information necessary for, and relevant to, the Union’s
performance of its duties as the exclusive collective-
bargaining representative of the unit.
(5) Closing its facility and laying off all unit em-
ployees without notice to the Union and without af-
fording the Union an opportunity to bargain over the
effects of the closure and the resulting layoffs.
(c) 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) Make whole all unit employees for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of this decision.
(b) Within 14 days from the date of this Order, re-
move from its files any reference to unlawful discrimi-
natory layoffs, and within 3 days thereafter notify the
affected employees in writing that this has been done
and that the layoffs will not be used against them in
any way.
(c) On request, bargain collectively with District No.
9, International Association of Machinists and Aero-
space Workers, AFL–CIO as the exclusive representa-
tive of an appropriate bargaining unit of all repair ma-
chinists, repair mechanics, and all other production and
maintenance employees at its St. Louis facility, exclud-
ing office clerical and professional employees, guard,
and supervisors as defined in the Act, by:
(1) Furnishing the Union with information necessary
for, and relevant to, the Union’s performance of its du-
ties as the exclusive collective-bargaining representa-
tive of the unit, including the information it requested
by letters dated December 7 and 16, 1994, and January
25, 1995, except for item 34, and by facsimile dated
February 8, 1995.
(2) Bargaining with the Union about the effects of
the decision to close the Respondent’s facility and the
resulting January 20, 1995 layoffs and, if an under-
standing is reached, embodying the understanding in a
signed agreement.
(d) Make whole all unit employees, and their con-
tractual benefit funds, for any losses resulting from the
failure to continue in effect all the terms and condi-
tions of the collective-bargaining agreement for those
employees, for any losses resulting from the February
11 and December 2, 1994 layoffs, and from the failure
to bargain over the effects of the decision to close our
facility and the resulting layoffs, in the manner set
forth in the remedy section of this decision.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, du-
plicate and mail, at its own expense, copies of the at-
tached notice marked ‘‘Appendix.’’4 Copies of the no-
855MACHINERY REPAIR INC.
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
tice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondent’s au-
thorized representative, shall be mailed by the Re-
spondent to all current employees and former employ-
ees employed by the Respondent at any time since
February 11, 1994.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent 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 discourage membership in District
No. 9, International Association of Machinists and
Aerospace Workers, AFL–CIO or in any other labor
organization:
By laying off our employees in order to avoid our
collective-bargaining obligations or in a manner con-
trary to the provisions of the collective-bargaining
agreement.
By changing employees’ wage rates and health in-
surance coverage and otherwise failing to maintain the
terms and conditions of employment as provided in the
collective-bargaining agreement.
WE WILL NOT refuse to bargain collectively with the
Union as the exclusive representative of our employees
in an appropriate bargaining unit:
By failing to continue in effect all the terms and
conditions of our collective-bargaining agreement with
the Union by changing the wages, health and welfare,
and pension benefits, and other terms and conditions of
employment of unit employees.
By bypassing the Union and dealing directly with
unit employees by offering them terms and conditions
of employment different from those in the collective-
bargaining agreement.
By laying off unit employees in a manner contrary
to the provisions of the collective-bargaining agree-
ment.
By failing and refusing 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 unit.
By closing our facility and laying off all employees
in the unit without notice to the Union and without af-
fording the Union an opportunity to bargain over the
effects of the closure and the resulting layoffs.
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 make all unit employees whom we have
unlawfully laid off whole for any loss of earnings and
other benefits resulting from their layoffs, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discriminatory layoffs of our employees,
and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the
layoffs will not be used against them in any way.
WE WILL, on request, bargain collectively with the
Union as the exclusive representative of our employees
in the following appropriate bargaining unit:
All repair machinists, repair mechanics, and all
other production and maintenance employees em-
ployed by us at our St. Louis, Missouri facility,
EXCLUDING office clerical and professional em-
ployees, guards, and supervisors as defined in the
Act.
By furnishing the Union with information necessary
for, and relevant to, the Union’s performance of its du-
ties as the exclusive collective-bargaining representa-
tive of the unit, including the information it requested
by letters dated December 7 and 17, 1994, and January
25, 1995, except for item 34, and by facsimile dated
February 8, 1995.
By bargaining with the Union over the effects on
unit employees of the decision to close our St. Louis
facility and the resulting layoffs and, if an understand-
ing is reached, embodying the understanding in a
signed agreement.
WE WILL make all unit employees and their contrac-
tual benefits funds whole for any losses resulting from
our failure to continue in effect all the terms and con-
ditions of the collective-bargaining agreement for those
employees.
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL pay backpay to the unit employees rep-
resented by the Union who were laid off when we
closed our St. Louis facility, as specified in the
Board’s Order, with interest on the sums due.
TURBINE SUPPORT, INC.