Opti-Dyne, Inc.Download PDFNational Labor Relations Board - Board DecisionsJul 11, 1978236 N.L.R.B. 1430 (N.L.R.B. 1978) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD Opti-Dyne, Inc. and District Lodge 86, International Association of Machinists and Aerospace Workers, AFL-CIO Opti-Dyne, Inc. and Emily R. Moran. Case 27-CA- 5513 and 27-CA--5725 July 11, 1978 DECISION AND ORDER BY MEMBERS PFNLLLO(), MURPHY. AND TRUIESDALE Upon a charge in Case 27-CA-5513, filed on Au- gust 1, 1977, by District Lodge 86, International As- sociation of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and upon a charge and amended charge in Case 27-CA-5725. filed on January 31 and February 16, 1978, re- spectively, by Emily R. Moran, all duly served on Opti-Dyne, Inc., herein called Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 27, issued an order reinstating the charge I and consolidating cases and a consolidated complaint and notice of hearing on March 6, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair 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 charges, order, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this pro- ceeding. Respondent failed to file an answer to the complaint. On March 28, 1978. counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on April 6, 1978, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent did not file a re- sponse to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: i the Regional Director for Region 27 had presiously dismissed the charge in Case 27 CA 5513 on September 20, 1977. The dismissal was ap- pealed by the Union, which appe.al was denied by the General ( ounsel on or about October 25, 1977 Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides: 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 com- plaint, unless the respondent is without knowl- edge, in which case the respondent shall so state, such statement operating as a denial. All allega- tions 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 ad- mitted 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 Re- spondent herein specifically states that unless an an- swer is filed within 10 days of service thereof "all of the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." Further. according to the uncontroverted allegations of the Motion for Summary Judgment, Respondent by letter dated March 13, 1978, instruct- ed the Region to refer all questions to Jon Clarke, Esq., Respondent's registered agent in the State of Colorado. Mr. Clarke advised the General Counsel by telephone on March 20, 1978, that he would not be representing Respondent in the present proceed- ing. The General Counsel's attempts to reach Re- spondent by telephone were unsuccessful because Respondent's telephone had been disconnected. As noted above, Respondent has failed to file an answer to the complaint and has failed to file a response to the Notice To Show Cause. Therefore, under the rule set forth above, no good cause having been shown for the failure to file a timely answer, the allegations of the complaint are deemed admitted and are found to be true. Accord- ingly, we grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Opti-Dyne, Inc., a Minnesota corporation with its principal office and place of business at 6750 East 46th Avenue, Denver, Colorado, is, and has been at 236 NLRB No. 185 1430 OPTI-DYNE, INC. all times material herein, engaged in the manufacture and sale of optical equipment. In the course and con- duct of its business operations, Respondent annually sells and ships goods and materials valued in excess of $50,000 directly to places outside the State of Col- orado. In addition, Respondent manufactures and sells products valued in excess of $50,000 which have a substantial impact on the national defense. We find on the basis of the foregoing that Opti- Dyne, Inc., 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVEDI District Lodge 86, International Association of Machinists and Aerospace Workers, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICE F A. The 8(a)() V'iolation From on or about August 10 through on or about August 29, 1977, Respondent, by Hal Blair, its presi- dent; John Martinelli, its former plant manager: Richard Kohn, its former purchasing manager; R. E. Pezolt, investigations: and undercover opera- tive Jim (last name unknown) engaged in surveil- lance of its employees' Union and other protected concerted activities, including the use of an under- cover operative at and around the plant and at union meetings. B. The 8(a)(3) Violations On or about July 28 and August 24, 1977, Respon- dent discharged its employees Emily R. Moran and Steve Mason, respectively, and at all times since has failed and refused, and continues to fail and refuse, to reinstate or offer to reinstate said employees to their former jobs or substantially equivalent positions of employment, because of said employees' member- ship in and activities on behalf of the Union. On the basis of the foregoing, we find that Respon- dent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them under Section 7 of the Act, and has discrimi- nated against its employees in regard to the terms and conditions of employment of its employees, thereby discouraging membership in a labor organi- zation, and that by such conduct Respondent en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Iv THie E[FEcr OF THE UNFAIR LABOR PRACTICES LPON COMMERCE The activities of Respondent Opti-Dyne, Inc., set forth in section III, above, occurring in connection with its operations described in section 1, 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. Till REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the pol- icies of the Act. Having found that Respondent discriminatorily discharged employees Emily R. Moran and Steve Mason, we shall order that it offer these employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges. We shall also order that Respondent make said employees whole for any loss of earnings they may have suffered be- cause of the discrimination against them, to be com- puted in accordance with the formula approved in F W. Ho.olworth Companyl 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 Having found that the unfair labor practices com- mitted by Respondent were of a character which goes to the heart of the Act, we shall also order Re- spondent to cease and desist from infringing in any other manner upon the rights of employees guaran- teed bh Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CON(I SIO()NS OF LAW 1. Opti-Dyne, Inc.. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. See. LeneraIN. 1Jw. P thlm 1. A ui ( ,. 118 Ni RB 716 i1962} 1431 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. District Lodge 86, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the acts described in section 111, above, Re- spondent has interfered with, restrained, coerced, and discriminated against employees in the exercise of the rights guaranteed them by 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 Re- lations Board hereby orders that the Respondent. Opti-Dyne, Inc., Denver, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Engaging in surveillance, including the use of an undercover operative, of the activities of its em- ployees on behalf of District Lodge 86, International Association of Machinists and Aerospace Workers, AFL CIO, or any other labor organization, or the concerted activities of its employees for the purpose of collective bargaining and other mutual aid and protection. (b) Discharging employees and failing and refus- ing to reinstate, or offer to reinstate, employees to their former or substantially equivalent positions be- cause they join or assist District Lodge 86, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, or engage in other concerted activity for the purpose of collective bargaining and mutual aid and protec- tion. (c) In any other manner interfering with, restrain- ing, or coercing its 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 immediate and full reinstatement to Emily R. Moran and Steve Mason to their former jobs or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole employees Emily R. Moran and Steve Mason for losses they suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Rem- edy." (c) 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. (d) Post at its plant copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ploeyes are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 engage in surveillance, including the use of an undercover operative, of the activi- ties of District Lodge 86, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, or the concerted activities of our employees con- ducted for the purpose of collective bargaining and other mutual aid and protection. WE WILL NOT discharge employees and fail and refuse to reinstate said employees to their former or substantially equivalent positions of employment because they join or assist District Lodge 86, International Association of Machin- ists and Aerospace Workers, AFL-CIO, or any other labor organization, or engage in other con- certed activities for the purpose of collective bargaining and mutual aid and protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the National Labor Relations Act. WE WILL offer to reinstate Emily R. Moran 1432 OPTI-DYNE. INC. and Steve Mason to their former jobs or. if those jobs no longer exist. to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. Wr wvili make whole employees Emily R. Moran and Steve Mason for any loss of pay suf- fered by reason of our discrimination against them. 1433 Opll-l )NItl. 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