Opti-Dyne, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1978

236 N.L.R.B. 1430 (N.L.R.B. 1978)

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. INc