Orange Data, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1985

274 N.L.R.B. 1018 (N.L.R.B. 1985)

1018 DECISIONS ,OF NATIONAL LABOR, RELATIONS, BOARD
Orange ,Data, Inc. aild ;Office and Professional Em- service, ."all of the allegations shall be deemed to
ployees International Union, Local 13, AFL-1 be admitted to be true and may be so found by the
„CIO. Cases 14-CA.-14921-,14,-CA-,15132, and,., ,Board." In the Motion for Summary Judgment
1,4'-CA-15554 -,herein,_ the General Counsel asserts that the Re-
19 March -1985
DECISION AND ORDER
By CHAIRMAN DOTSON .AND MEMBERS
HUNTER AND DENNIS
Upon charges filed by Office and Professional
Employees International Union, Local 13; AFL-
CIO (the Union) on 23 April, 30 June, and •4 De-
cember 1981, the General Counsel of the National
Labor Relations Board issued a consolidated"com-
plaint on 6 January 1982 against Orange Data,, Inc.
(the Respondent), alleging that it has violated.-Sec-
tion 8(a)(5), (3), and (1) of the National Labor Re-
lations Act. On 20 January 1982 the Respondent
filed an answer denying the unfair labor practice
allegations.
On 27 April 1982 the Regional Director for
Region 14 of the Board approved' a bilateral infor-
mal settlement agreement disposing of the• Union's
charges. On 22 April 1983, however, the Acting
Regional Director for Region 14 issued an order
vacating the settlement agreement due to the Re-
spondent's alleged failure to comply with its terms.
Accordingly, the General Counsel issued a consoli-
dated complaint on 22 April 1983 against the Re-
spondent alleging that it has violated Section
8(a)(5), (3), and (1) of the Act.2 Although properly
served, the Respondent has failed to file an answer
to this complaint.
On 22 July 1983 the General Counsel filed a
Motion for Summary Judgment. On 27 July 1983
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent
filed a response to the notice. On 30 January 1984
the Board issued an order reopening the record so
that the parties might submit statements of position
as to the appropriate remedy. The General Counsel
filed a statement of position.
Ruling on the 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
within 10 days from service of the complaint,
unless good cause is shown. The complaint states
that unless an answer is filed within 10 days of
i See National Labor Relations Board Statements of Procedure Sec
101 9
2 This complaint raises the same substantive allegations as the 6 Janu-
ary 1982 complaint.
. spondent• has failed to, file an answer to the 22
April 1983 complaint. The General Counsel re-
quests that the Board deem the complaint allega-
tions to be admitted and issue a Decision and
Order.
The record shows that the Respondent did not
file an answer to the 22 April 1983 complaint. The
record also shows,, however, that the Respondent
filed an answer, to the 6 January 1982 complaint.
That answer denied allegations that are substantial-
ly the,same as the unfair labor practice allegations
contained in the 22 April 1983 complaint presently
before the Board. The Board has denied motions
for summary judgment3 when the record reveals
that the Regional Director issued a complaint, the
respondent filed an answer, the parties executed an
informal settlement agreement, the Regional Direc-
tor thereafter withdrew approval of the settlement
agreement and reissued complaint, and the re-
spondent failed to file an answer to the reissued
complaint. WUSS Radio, 236 NLRB 1529 (1978);
Nottingham Restaurant, 243 NLRB 567 (1979);
Frate Service, 255 NLRB 163 (1981). In these cases,
the Board found that the respondent's answer to
the initial complaint remained extant, raised litiga-
ble issues, and precluded granting a motion for
summary judgment under Board Rule 102.20. We
take administrative notice of the fact that the Gen-
eral Counsel responded to these decisions by
adding certain language to the standard informal
settlement agreement (hereafter Form NLRB-4775)
on 15 June 1981. Prior to June 1981, Form NLRB-
4775 provided in pertinent part: "Approval of this
Agreement by the Regional Director shall consti-
tute withdrawal of any Complaint(s) and Notice of
Hearing heretofore issued in this case." The Gener-
al Counsel changed Form NLRB-4775 to read:
"Approval of this Agreement by the Regional Di-
rector shall constitute withdrawal of any
Complaint(s) and Notice of Hearing heretofore
issued in this case, as well as any answer filed in re-
sponse." (Emphasis added.) It effectuates the Act's
policies to encourage informal settlements and to
require the parties and the General Counsel to
8 The Board has also denied motions for summary judgment when the
Regional Director issued complaint, the respondent filed an answer, the
Regional Director issued an amended complaint based on a new charge,
and the respondent failed to file an answer to the amended complaint
See Oldwtck Materials, 264 NLRB 1152 (1982), Marko Contractors, 269
NLRB 990 (1984 ) Of course , these cases do not address the effect of an
executed informal settlement agreement on a prior complaint and answer
Accordingly , we view these cases as distinguishable from, and inapplica-
ble to, the instant matter
274 NLRB No. 156
ORANGE DATA INC.
adhere to the terms of such settlements. For this
reason , the Board has decided to give effect to the
language added by the General Counsel to Form
NLRB-4775. On 27 April 1982 the Respondent
signed and the Regional Director approved a Form
NLRB-4775 settlement agreement. We find that the
Respondent's 20 January 1982 answer was with-
drawn by the explicit terms of that agreement. Ac-
cordingly, we conclude that the 20 January 1982
answer does not remain extant4 and therefore does
not preclude the Board from granting the General
Counsel's Motion for Summary Judgment.
The record further shows that the Respondent
filed a response5 to the 27 July 1983 Notice to
Show Cause. This response alleges that the Re-
spondent had offered a satisfactory settlement of
these unfair labor practice charges to the Acting
Regional Director for Region 14. We are adminis-
tratively advised, however, that the charges have
not been settled. Further, the response does not
deny the commission of the unfair labor practices.
Nor does the response explain the Respondent's
failure to answer the complaint. Accordingly, we
find that the response is factually inaccurate, legal-
ly inadequate, and therefore does not constitute
good cause for the Respondent's failure to file an
answer within the meaning of Section 102.20 of the
Board's Rules.
In the absence of good cause being shown for
the failure to file a timely answer, we grant the
General Counsel's Motion for Summary Judg-
ment.6
4 We do not overrule WUSS Radio , above, Nottingham Restaurant,
above, or Frate Service, above Rather, we hold that the language added
by the General Counsel to Form NLRB -4775 requires a different result
The holdings in those three cases are , however, limited to their specific
facts
5 The response , signed by Respondent President Phillips, stated
Orange Data, Inc , has offered to the Acting Regional Director
for Region 14 of the National Labor Relations Board a settlement
program which would remove the above cases from all parties' files
and would not cost the Government and taxpayers any further costs
The settlement payments would pay the balance remaining without
hardship to Orange Data, Inc. over the period involved Orange
Data, Inc, financial picture during the period of default on the origi-
nal settlement period was in most part caused by the very problem
of unionization in St Louis A labor slow down and excess eirors in
our customers McDonald Douglas' work caused late delivery of
data, as well as high error rates in same Eventually this caused our
contract to be cancelled and a situation of our entire St Louis oper-
ation to be shut down Since St Louis was 65% of our operation
(Calif only 35%) the company nearly went "under " At this time
the corporation has stabilized enough to handle this debt Unfortu-
nately, as I guess is the usual case there are not winners only loosers
[sic] in this whole story
6 Chairman Dotson joins the above analysis and agrees that the Re-
spondent 's 20 January 1982 answer and 9 August 1983 response to the
Notice to Show Cause do not preclude the Board from granting the Gen-
eral Counsel 's Motion for Summary Judgment In granting that motion,
however , the Chairman relies on the Respondent 's failure to contest the
factual allegations or the legal conclusions of the General Counsel's com-
plaint Accordingly , Chairman Dotson views the Board's findings of fact
and conclusions of law as being in the nature of a default judgment and
lacking precedential value
1019
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation, is en-
gaged in the business of converting raw data from
source documents into a form' that is readable by a
computer. During the period from at least 20 April
1981 through 12 November 1981, the Respondent
maintained a facility in St. Charles, Missouri.7
During the year ending 10 July 1981, a representa-
tive period, the Respondent, in the course of its
Missouri business operations, performed services
valued in excess of $50,000, of which services
valued in excess of $50,000 were furnished to en-
terprises each of which in the course of its business
operations manufactured, sold, and distributed
products valued in excess of $50,000 of which
products valued in excess of $50,000 were shipped
directly from these enterprises to points located
outside the State of Missouri. We find that the Re-
spondent 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On 27 April 1982 the Respondent executed a set-
tlement agreement with the Union, approved by
the Regional Director, providing, inter alia, that
the Respondent would make certain periodic pay-
ments of backpay commencing by 5 August 1982.
The Respondent failed to remit certain of these
payments and thereby breached the terms of the
agreement. We find that the Regional Director cor-
rectly vacated the settlement agreement on 22
April 1983. Henry I. Siegel Co., 143 NLRB 386
(1963), enfd. 328 F.2d 25 (2d Cir. 1964).
B. Unlawful Threats
About 20 April 1981 the Respondent' s agent
Smith threatened employees with the loss of har-
monious working conditions, threatened employees
with the imposition of discipline, and told employ-
ees that the Respondent would move its St.
Charles, Missouri facility if the employees selected
the Union as their representative for purposes of
collective bargaining. About 30 April 1981 the Re-
spondent's agent Phillips threatened employees
with the imposition of more stringent working
r The Respondent currently maintains a facility in Old Sacramento,
California.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rules, and threatened employees by telling them
that employees on the piece-rate compensation
system would lose money if the employees selected
the Union as their representative for purposes of
collective bargaining. Finally, about 9 July 1981
the Respondent's agent Smith told an employee
that the Respondent would close its St. Charles,
Missouri facility, and the National Labor Relations
Board would not be able to do anything about it, if
the employees selected the Union as their collec-
tive-bargaining representative.
On the basis of this conduct, we find that the
Respondent is and has been engaging in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7)
of the Act.
C. Unlawful Discrimination
About 23 June 1981 the Respondent issued ter-
mination warnings to employees Jones, Lucas,
Feldman, Ryon, Humphrey, Snyder, Brunkhorst,
Christopher, Correira, Hunter, Lamer, and other
employees. The Respondent has failed to expunge
these warnings from its files. About 12 November
1981 the Respondent discharged all the employees
at its St. Charles, Missouri facility. The Respondent
has failed to reinstate these employees to their
former or substantially equivalent positions of em-
ployment. The Respondent engaged in the above
conduct to discourage its employees from engaging
in union and/or protected concerted activities, and
engaged in the above conduct because its employ-
ees engaged in union and/or concerted activities
for purposes of collective bargaining or mutual aid
and protection.
On the basis of this conduct we find that the Re-
spondent is and has been engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the Act.
D. Refusal to Bargain
Pursuant to certification by the Regional Direc-
tor on 9 September 1981, the Union has been and
continues to be the designated exclusive collective-
bargaining representative of the Respondent's em-
ployees in the following appropriate unit:
All full-time and regular part-time office em-
ployees employed by the Employer at its 1650
Boonslick, St. Charles, Missouri, facility, ex-
cluding professional employees, guards and su-
pervisors as defined in the Act.
About 12 November 1981 the Respondent trans-
ferred work from its St. Charles, Missouri facility
to its facility in California and thereby discharged
the employees in the above unit. The Respondent
engaged in this conduct without affording the
Union an opportunity to negotiate and bargain
over the decision to transfer work, or the effects of
the decision.
On the basis of this conduct, we find8 that the
Respondent is and has been engaging in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
CONCLUSIONS OF LAW
1. By threatening its employees that if they se-
lected the Union as their collective-bargaining rep-
resentative, then the Respondent would impose less
harmonious working conditions, discipline, more
stringent working rules, reduced wages, and would
transfer or close its facility, the Respondent has
violated Section 8(a)(1) of the Act.
2. By issuing termination warnings to certain em-
ployees, and by discharging all employees at the
St. Charles, Missouri facility, in order to discour-
age the employees from, and to retaliate against its
employees for, engaging in union and/or protected
concerted activities, the Respondent has violated
Section 8(a)(3) and (1) of the Act.
3. By failing and refusing to bargain with the
Union, as the exclusive collective-bargaining repre-
sentative of the Respondent's employees in an ap-
propriate unit, over the Respondent's decision to
close its St. Charles, Missouri facility, and over the
effects of that decision, the Respondent has violat-
ed Section 8(a)(5) and (1) of the Act.
THE REMEDY
On 30 January 1984 the Board issued an order
reopening the record and requesting specific state-
ments of position from the parties regarding the ap-
propriate remedy. On 21 February 1984 the Gener-
al Counsel filed a statement of position. There was
no response from the Respondent. Having found
that the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5), (3),
and (1), and having considered the General Coun-
sel's statement, we shall order the Respondent to
cease and desist and to take affirmative action de-
signed to effectuate the policies of the Act.
As a result of the Respondent's unlawful failure
to bargain over its decision, and the effects thereof,
8 Member Hunter finds it unnecessary to pass on the allegations that
the Respondent violated Sec 8(a)(5) of the Act in view of his agreement
with his colleagues that the Respondent has violated Sec 8(a)(3) by its
conduct See Mashkin Freight Lines, 272 NLRB 427 In 7 (1984) Member
Hunter would, however, issue a notice to show cause why the Respond-
ent should not be required to reestablish its facility in St Charles, Mis-
souri
ORANGE DATA INC 1021
to cease operations at the St. Charles, Missouri fa-
cility, the terminated employees have been denied
an opportunity to bargain through their representa-
tive at an appropriate time. Meaningful bargaining
cannot be assured until some measure of economic
strength is restored to the Union. A bargaining
order alone cannot serve as an adequate remedy
for the refusal to bargain. In order to recreate the
situation that existed at the time the Respondent
should have bargained,9 and to make whole all em-
ployees for any loss of pay suffered as a result of
the unlawful refusal to bargain, we shall order the
Respondent to recognize and bargain with the
Union, on request, about its decision and the effects
thereof to close the St. Charles facility, and to pay
employees who were employed on the date of
transfer at their normal wage rate from 12 Novem-
ber 1981 until the earliest of the following condi-
tions is met: (1) the Respondent bargains to agree-
ment with the Union regarding the transfer of
work; (2) there is a bona fide impasse in bargaining;
(3) the Union fails to request bargaining within 10
days from the issuance of this Decision and Order;
or (4) the Union subsequently fails to bargain in
good faith. 10
Moreover, in order to recreate the status quo
ante at the time, 12 November 1981, that the Re-
spondent discriminatorily discharged its employees
at the St. Charles facility, we shall order the Re-
spondent to offer these employees 11 full and imme-
diate reinstatement to their former or substantially
equivalent positions, wherever located, without
prejudice to their seniority or other rights, replac-
ing if necessary any employee hired to perform the
work previously performed by the discriminatees.
As to those employees who accept an offer of rein-
statement, the Respondent shall make them whole
for any lost earnings or other benefits resulting
from the Respondent's discrimination, by tendering
backpay computed from the date of discharge to
the date of reinstatement, and by tendering reason-
able expenses incurred in moving their households
and families to such location. As to those employ-
ees who decline an offer of reinstatement, the Re-
spondent shall make them whole for any lost earn-
ings or other benefits resulting from the Respond-
ent's discrimination, by tendering backpay comput-
ed from the date of discharge to the date that each
9 In his statement of position, the General Counsel declined to request
a remedial order reestablishing the St Charles facility The General
Counsel noted that such an order would be unduly burdensome to the
Respondent Given the circumstances of this case, and the Union' s failure
to request such a remedial order, we agree with the General Counsel and
will not impose a reestablishment order
io See, e g, National Family Opinion, 246 NLRB 521, 522 (1979)
i i We defer any findings to the compliance stage as to which employ-
ees, beyond those specified herein, are entitled to the benefit of these
remedies
employee secures substantially equivalent employ-
ment with another employer.12
All backpay,13 less interim earnings, shall be
computed in the manner set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest com-
puted in the manner set forth in Florida Steel Corp.,
231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1962).
We shall also order the Respondent to expunge
all discriminatory warnings from the files of its
former St. Charles employees, to cease and desist
from threatening its St. Charles employees with re-
taliation for their union or concerted activities, and
to post at its California facility, and mail to all
former St. Charles employees, copies of the notice
herein.
ORDER
The National Labor Relations Board orders that
the Respondent , Orange Data , Inc., St . Charles,
Missouri , its officers , agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Threatening employees with the loss of har-
monious working conditions, the imposition of dis-
cipline and more stringent work rules, the reduc-
tion of wages , or the closing of the St . Charles,
Missouri facility because they select Office and
Professional Employees International Union, Local
13, AFL-CIO, or any other labor organization, as
their collective -bargaining representative or engage
in any activities on behalf of any union.
(b) Discharging, issuing termination warnings, or
otherwise discriminating against employees for en-
gaging in activities on behalf of a labor organiza-
tion or for engaging in activity protected by Sec-
tion 7 of the Act.
(c) Refusing to bargain with the Union as the ex-
clusive bargaining representative of the unit em-
ployees about the decision, and the effects thereof,
to close its St. Charles, Missouri facility, terminate
the employees, and transfer the business to a Cali-
fornia facility.
(d) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
12 See, e g, Bermuda Knitwear Corp, 120 NLRB 332 (1958), F Landon
Cartage Co, 265 NLRB No 177 (1982) (not reported in Board volumes)
is We emphasize that we do not intend the employees herein to re-
ceive a double measure of backpay due to the separate and independent
8(a)(5) and (3) remedies Rather, we intend that the employees receive
backpay from the date of discharge and transfer, 12 November 1981, to
the date of the latest occurrence of either (a) one of the four bargaining
factors or (b) one of the two reinstatement factors, set out above
1022 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
(a) On request, bargain collectively, with Office
and Professional Employees International Union,
Local 13, AFL-CIO concerning the decision and
effects thereof to close the St. Charles, Missouri fa-
cility, terminate the employees, and transfer the
business to a California facility, and thereafter
reduce to writing any agreement reached as a
result of such bargaining.
(b) Pay the terminated employees their normal
wages in the manner set forth in the remedy sec-
tion of this decision.
(c) Offer employees Jones, Lucas, Feldman,
Ryon, Humphrey, Snyder, Brunkhorst, Christo-
pher, Correira, Hunter, Lamer, and other employ-
ees immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority and other rights, at the
facility performing the work previously performed
at St. Charles, Missouri, discharging if necessary
any employee hired to perform such work, and re-
imbursing any employee who accepts such rein-
statement for all reasonable travel expenses to that
facility.
(d) Expunge from its files the termination warn-
ings issued to the above-named employees and
other employees, or any other reference to the un-
lawful discharges, and notify each employee in
writing that this has been done.
(e) Make the above-named employees and other
employees whole for any lost earnings they may
have suffered by reason of the discrimination
against them, in the manner set forth in the remedy
section of this decision.
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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.
(g) Mail a copy of the attached notice marked
"Appendix" 14 to each employee in the appropriate
unit who was employed by the Respondent at its
St. Charles, Missouri facility immediately prior to
the Respondent's transfer of operations, and post
copies at its facility in Old Sacramento, California.
Copies of the notice, on forms provided by the Re-
gional Director for Region 14, after being signed
by the Respondent's authorized representative,
shall be mailed to employees immediately upon re-
is 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
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
ceipt by the Respondent, and shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-,
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(h), Notify the Regional Director in writing
within 20 days from the date of this Order what
steps 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 ordered us to post and abide by this notice.
WE WILL NOT threaten employees with the loss
of harmonious working conditions, the imposition
of discipline and more stringent work rules, the re-
duction of wages, or the closing of the St. Charles,
Missouri facility because they select Office and
Professional Employees International Union, Local
13, AFL-CIO, or any other labor organization, as
their collective-bargaining representative or engage
in any activities on behalf of any union.
WE WILL NOT discharge, issue termination warn-
ings, or otherwise discriminate against employees
for engaging in activities on behalf of a labor orga-
nization or for engaging in activity protected by
Section 7 of the Act.
WE WILL NOT refuse to bargain with the Union
as the exclusive bargaining representative of the
unit employees about the decision and the effects
thereof to close the St. Charles, Missouri facility,
terminate the employees, and transfer the business
to a California facility.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain collectively with
the Union concerning the decision and effects
thereof to close the St. Charles, Missouri facility,
to terminate the employees, and transfer the busi-
ness to a California facility, and thereafter reduce
to writing any agreement reached as a result of
such bargaining.
WE WILL pay the terminated employees their
normal wages in the manner set forth by the
Board's Decision and Order.
ORANGE DATA INC
WE WILL offer employees Jones, Lucas, Feld-
man, Ryon, Humphrey, Snyder, Brunkhorst, Chris-
topher, Correira, Hunter, Lamer, and other em-
ployees full and immediate reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority and other rights, at the
facility performing the work previously performed
at St. Charles, Missouri, discharging if necessary
any employee hired to perform such work, and re-
imbursing any employee who accepts such reasona-
ble travel expenses to the facility.
1023
WE WILL expunge from our files the termination
warning issued to the above-named employees and
other employees, or any other reference to the un-
lawful discharges, and WE WILL notify the employ-
ees in writing that this has been done.
WE WILL make the above-named employees and
other employees whole for any lost earnings and
other benefits resulting from their discharges, less
net interim earnings, plus interest.
ORANGE DATA, INC.