Midwestern Pacific Corp.

National Labor Relations Board - Board Decisions

Nov 15, 1972

200 N.L.R.B. 322 (N.L.R.B. 1972)

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midwestern Pacific Corporation and International
Union of Operating Engineers , Local 139. Case
30-CA-1949
November 15, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge and amended charge filed on May
12 and June 29, 1972, respectively, by International
Union of Operating Engineers, Local 139, herein
called the Union, and duly served on Midwestern
Pacific Corporation, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 30,
issued a complaint on June 30, 1972, against
Respondent, alleging that Respondent had engaged
in and was engaging 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
National Labor Relations Act, as amended. Copies
of the charge, 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) since on or
about February 22, 1972, and thereafter, Respondent
has discriminatorily refused to recall from layoff its
employees, Von Hunter, Stanley Bochanyin, Harvey
Kolstad, Ed Guthman, Raymond Wiederhoft, Har-
vey Melzova, Ben McCully, and other employees not
presently known to the Regional Director, all
because of their concerted protected activity in,
membership in, and sympathies for the Union; (2)
since on or about April 1, 1970, Respondent and the
Union had been parties to a collective-bargaining
agreement which expired May 31, 1972, and pur-
suant to which Respondent recognized the Union as
the exclusive bargaining representative for purposes
of negotiating the wages, hours, and other terms and
conditions of employment for Respondent's employ-
ees in an appropriate unit consisting of all heavy
equipment operators and other employees in the
jurisdiction of the Union; and (3) since on or about
February 22, 1972, and thereafter, Respondent has
failed and refused to bargain in good faith with the
Union by bargaining directly and individually with
employees in the unit described above, concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment, in derogation
of the Union's status as the collective-bargaining
representative of these employees. By the aforesaid
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
acts, described above, the complaint alleges that
Respondent has violated Section 8(a)(1), (3), and (5)
of the. Act. The Respondent failed to file an answer
to the complaint.
On August 7, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment based on the Respondent's
failure to file a timely answer as required by the
Board's Rules and Regulations. Subsequently, on
August 18, 1972, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent did not file a response to the 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 stated that unless an answer
was filed to the complaint within 10 days from the
service thereof "all of the allegations of the com-
plaint shall be deemed to be admitted to be true and
shall be so found by the Board." Further, according
to the Motion for Summary Judgment, after the time
for filing an answer had expired, counsel for the
General Counsel telephoned Respondent's president,
Gwyn J. Johnson, requesting that Respondent file its
answer by the close of business on August 2, 1972.
On July 28, 1972, counsel for the General Counsel
wrote a confirming letter again requesting that
200 NLRB No. 49
MIDWESTERN PACIFIC CORPORATION 323
Respondent file its answer by August 2, 1972, and
stating that if it had not done so by that date,
judgment on the pleadings would be requested. To
date Respondent has failed to file an answer to the
complaint and has given no reason for its failure to
do so. Since the Respondent has not filed an answer
within 10 days from the service of the complaint, or
at any other time, and since no good cause for such
failure has been shown, in accordance with the rule
set forth above, the allegations of the complaint
herein are deemed to be admitted to be true and are
so found to be true. We shall, accordingly, grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Wisconsin corporation, is engaged
as a general contractor in the building and construc-
tion industry and maintains its principal office in
Appleton, Wisconsin. During the past calendar year,
a representative period, Respondent purchased and
received goods and materials valued in excess of
$50,000 directly from suppliers located outside the
State of Wisconsin.
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.
22, 1972, and thereafter, Respondent has failed and
refused to bargain in good faith by bargaining
directly and individually with unit employees in
derogation of the Union's status as collective-bar-
gaining representative of these employees. We,
accordingly, find that the Respondent, by conduct
described above, has since on or about February 22,
1972, and at all times thereafter, refused to bargain
collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate unit
and that by such conduct, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
B. The 8(a)(3) and (1) Violations
Since on or about February 22, 1972, and thereaft-
er, Respondent has discriminatorily refused to recall
from layoff its employees Von Hunter, Stanley
Bochanyin, Harvey Kolstad, Ed Guthman, Ray-
mond Wiederhoft, Harvey Melzova, and Ben
McCully because of their concerted protected activi-
ty in, membership in, and sympathies for the Union.
We find, accordingly, that Respondent, by the
conduct described above, discriminated in regard to
the terms and conditions of employment of its
employees, thereby discouraging membership in a
labor organization, and that by such conduct
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local
139, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The 8(a)(5) Violations
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act: "All heavy equipment operators and other
employees in the jurisdiction of the Union."
Since on or about April 1, 1970, Respondent and
the Union had been parties to a collective-bargaining
agreement pursuant to which Respondent recognized
the Union as the exclusive collective-bargaining
representative for purposes of negotiating wages,
hours, and other terms and conditions of employ-
ment for Respondent's employees in the unit herein
found to be appropriate. Since on or about February
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. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5), (3), and (1) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist from bargaining
directly and individually with unit employees in
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
derogation of the Union's status as collective-bar-
gaining representative, and, upon request, bargain
collectively with the Union as the exclusive repre-
sentative of all employees in the unit found appropri-
ate and, if an understanding is reached, embody such
understanding in a signed agreement.
Since we have found that Respondent discrimina-
torily refused to recall from layoff its employees, Von
Hunter, Stanley Bochanyin, Harvey Kolstad, Ed
Guthman, Raymond Wiederhoft, Harvey Melzova,
and Ben McCully, we shall order that Respondent
offer them immediate and full reinstatement to their
former jobs or, if such jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and
make them whole for any loss of earnings they may
have suffered by reason of such discrimination, by
payment of a sum of money equal to that which they
normally would have earned as wages from the date
of discrimination against them to the date of said
offer of reinstatement, less their 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.
Since 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:
CONCLUSIONS OF LAW
1. Midwestern Pacific Corporation is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers,
Local 139, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All heavy equipment operators and other
employees within the jurisdiction of the Union,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. By refusing on or about February 22, 1972, and
at all times thereafter, to bargain collectively in good
faith with the Union as the exclusive bargaining
representative of its employees in the appropriate
unit, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
5. By discriminating in regard to the hire and
tenure of employment of employees because of their
union activities, thereby discouraging membership in
or activities on behalf of a labor organization, the
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
6. By the acts described in section III, A and B,
above, Respondent has interfered with, restrained
and coerced, and is interfering with, restraining and
coercing employees in the exercise of rights guaran-
teed 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)(5), (3), and (1) of
the Act.
7. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Midwestern Pacific Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with International Union
of Operating Engineers, Local 139, in derogation of
its status as exclusive bargaining representative of the
employees in the following appropriate unit: "All
heavy equipment operators and other employees in
the jurisdiction of the Union."
(b) Discouraging membership in, or activities on
behalf of, International Union of Operating Engi-
neers, Local 139, or any other labor organization, by
failing or refusing to recall from layoff or otherwise
discriminating in regard to hire or tenure of employ-
ment or any terms or conditions of employment of
any of its employees because of their concerted
protected activity in, membership in, and sympathies
for International Union of Operating Engineers,
Local 139.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the aforesaid
appropriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Offer to Von Hunter, Stanley Bochanyin,
MIDWESTERN PACIFIC CORPORATION
Harvey Kolstad, Ed Guthman, Raymond Wieder-
hoft, Harvey Melzova, and Ben McCully immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority and
other rights and privileges.
(c) Notify immediately the above-named individu-
als, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act.
(d) Make whole the employees named in (b),
above, in the manner set forth in the section entitled
"The Remedy," for any loss of pay each may have
suffered by reason of Respondent's discrimination
against him.
(e) 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.
(f) Post at its Appleton, Wisconsin, office and
current area worksites copies of the attached notice
marked "Appendix." 2 Copies of said notice, on
forms provided by the Regional Director for Region
30, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director for Region 30, 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 refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Union of Operating Engineers, Local
325
139, as the exclusive representative of the employ-
ees in the bargaining unit described below by
bargaining directly and individually with unit
employees in derogation of the above labor
organization's status as collective-bargaining rep-
resentative.
WE WILL NOT discourage membership in, or
activities on behalf of, International Union of
Operating Engineers, Local 139, or any other
labor organization , by failing or refusing to recall
from layoff or otherwise discriminating in regard
to hire or tenure of employment or any terms or
conditions of employment of any of our employ-
ees because of their union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7 of
the Act.
WE WILL, upon request, bargain with the
above-named Union, as exclusive representative
of all employees in the bargaining unit described
below, with respect to rates of pay, wages, hours
and other terms and conditions of employment
and, if an understanding is reached, embody such
understanding in a signed agreement . The bar-
gaining unit is:
All heavy equipment operators and other
employees in the jurisdiction of the Union.
WE WILL offer to Von Hunter, Stanley Bocha-
nyin, Harvey Kolstad, Ben McCully, Ed Guth-
man, Raymond Wiederhoft, and Harvey Melzova
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges, if
necessary, by discharging other employees who
may have replaced them.
WE WILL make whole the employees named
above for any loss of pay each may have suffered
as a result of the discrimination practiced against
him.
All employees are free to become or remain, or to
refrain from becoming or remaining , members of any
labor organization.
MIDWESTERN PACIFIC
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Forces, in accordance with the Selective Service Act Any questions concerning this notice or compli-
and the Universal Military Training and Service Act. ance with its provisions may be directed to the
This is an official notice and must not be defaced Board's Office, Second Floor, Commerce Building,
by anyone. 744 North Fourth Street, Milwaukee, Wisconsin
This notice must remain posted for 60 consecutive 53203, Telephone 414-272-8600, Ext. 3861.
days from the date of posting and must not be
altered, defaced, or covered by any other material.