Strippers, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1972

197 N.L.R.B. 291 (N.L.R.B. 1972)

STRIPPERS, INC.
Strippers, Inc. and Southern Labor Union. Case
10-CA-9317
June 6, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on December 2, 1971, and an
amended charge filed on January 17, 1972, by
Southern Labor Union, herein called the Union, and
duly served on Strippers, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 10, issued a complaint on January 20, 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)(3), (5), 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 a Trial Examiner were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges that on or about November 1,
1971, the Respondent transferred employee Glenn C.
Jeffers from its strip mine to its concrete plant, and
on November 20, 1971, discharged and thereafter
failed and refused to reinstate him. The complaint
further alleges that on or about November 16, 1971,
the Respondent laid off and thereafter failed and
refused to recall employees Roy D. Overton and
Ernie A. Baker. The complaint alleges that the
Respondent transferred and discharged Jeffers and
laid off Overton and Baker because of their member-
ship in, and activities on behalf of, the Union, and
because they engaged in concerted activities with
other employees for the purpose of collective
bargaining or other mutual aid and protection.
The complaint also alleges that on or about
November 1, 1971, the Union was designated by a
majority of the employees in an appropriate unit,
that at all times since that date the Union has been,
and is, the exclusive bargaining representative of all
employees in said unit, and that on or about
November 1, 1971, and at all times thereafter,
Respondent has refused, and continues to refuse, to
bargain collectively with the Union, although the
Union has requested it to do so. It is further alleged
that on or about November 10, 1971, Respondent
unilaterally, and without bargaining with the Union,
granted insurance benefits to its unit employees.
Alleged as an independent violation is the conduct of
Respondent's president and mine superintendent in
291
threatening its employees with a mine closure if the
Union was successful in its organizational campaign.
On February 28, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 2,
1972, 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. Respon-
dent did not file a response to 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 state that unless an answer
were filed within 10 days from the service of the
complaint "all of the allegations of said complaint
shall be deemed to be admitted to be true and may
be so found by the Board." The complaint was
served on Respondent on or about January 20, 1972.
On February 7, 1972, Respondent's president was
solicited by counsel for the General Counsel, both by
telephone and by letter, to file an answer to the
complaint. On February 14, 1972, Respondent's
president was again solicited to file an answer. He
replied that he was not going to file an answer but
would ask for postponement of the hearing in order
to try to find an attorney. The Board has received no
further communication from the Respondent. Since
the Respondent has not filed an answer to the
complaint nor shown good cause for failure to do so,
the allegations of the complaint are deemed, and are
197 NLRB No. 38
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found, to be true. We shall, accordingly, 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 THE RESPONDENT
Respondent is a Tennessee corporation , with its
principal office and place of business at Huntsville,
Tennessee , where it is engaged in the strip mining
and sale of coal. During the past year, Respondent
sold and shipped coal valued in excess of $50,000
directly to the Tennessee Valley Authority. The
Tennessee Valley Authority is a public utility
engaged in the generation and distribution of
electrical power throughout the Southeastern United
States. During the past year it sold and distributed
electrical power directly to points outside the State of
Tennessee valued in excess of $50,000.
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.
II. THE LABOR ORGANIZATION INVOLVED
Southern Labor Union 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 unit
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 production and maintenance employees of
the Respondent, at its Huntsville, Tennessee,
mine , but excluding office clerical employees,
guards, professional employees and supervisors as
defined in the Act.
The Union was duly selected as the collective-
bargaining representative of the employees in said
unit on or about November 1, 1971, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
Commencing on or about November 1, 1971, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about November 1, 1971, and
continuing at all times thereafter to date, the
Respondent has refused , and continues to refuse, to
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that the Respondent has,
since November 1, 1971, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(5) and
(1) of the Act.
On or about November 10, the Respondent
unilaterally, and without bargaining with the Union,
granted insurance benefits to its employees in the
unit described above. We find that by such conduct
the Respondent further violated Section 8 (a)(5) and
(1) of the Act.
B. The 8(a)(3) Violations
On or about November 1, 1971, Respondent
transferred employee Glenn C. Jeffers from its strip
mine to its concrete plant and on or about November
20, 1971, discharged Glenn C. Jeffers and thereafter
failed and refused to reinstate him because of his
membership in, and activities on behalf of, the
Union , and because he engaged in concerted
activities with other employees for the purpose of
collective bargaining or other mutual aid and
protection.
Respondent, on or about November 16, 1971, laid
off and thereafter failed and refused to recall Roy D.
Overton and Ernie A. Baker because of their
membership in, and activities with other employees
and because they engaged in concerted activities
with other employees for the purpose of collective
bargaining or other mutual aid or protection.
Accordingly, we find that by the transfer and
discharge of Jeffers and by the layoff of Overton and
Baker and by its failure to reinstate and recall these
employees, the Respondent discriminated in regard
to the terms and conditions of employment of its
employees because of their union and other concert-
ed activities, thereby discouraging membership in a
labor organization and that by such conduct the
Respondent engaged in and is engaged in unfair
labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
C. The Independent 8(a)(1) Violations
Respondent, by its president and mine superin-
tendent, on or about November 10, 1971, threatened
its employees with closure of the mine if the Union
STRIPPERS, INC.
were successful in its organizational campaign. We
find, accordingly, that by the aforesaid conduct, the
Respondent interfered with, restrained, and coerced
its employees in the exercise of the rights. guaranteed
under Section 7 of the Act and that, by such conduct,
Respondent engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the 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)(1), (3), and (5) 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.
As the Respondent on or about November '_, 1971,
and at all times thereafter, refused and continues to
refuse to bargain with the Union as the exclusive
collective-bargaining representative of the employees
in the above-described unit, and on November 10,
1971, without bargaining with the Union, granted
insurance benefits to employees in the bargaining
unit, we shall order Respondent to cease and desist
from such conduct and, upon request, bargain
collectively with the Union as the exclusive repre-
sentative of all employees in the described unit.
Since we have found that Respondent discrimina-
torily transferred and subsequently discharged Glenn
C. Jeffers and discriminatorily laid off and failed to
recall Roy D. Overton and Ernie A. Baker and
refused to reinstate them to their former positions,
we shall order that Respondent offer them immedi-
ate 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, and make them whole for
any loss of earnings they may have suffered by
payment to them of sums of money equal to the
amount they normally would have earned as wages
from the dates of the respective layoffs of Overton
and Baker and from the date of the discharge of
Jeffers, less net earnings, in accordance with the
formula set forth in F. W. Woolworth Company, 90
293
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716. Jeffers is similarly to be made whole for
losses, if any, resulting from his discriminatory
transfer.
Since the unfair labor practices committed by the
Respondent are 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. Respondent, Strippers, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Southern Labor Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By the acts described in section III, A, B, and
C, Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights
guaranteed 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)(1), (3), and (5) 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
Relations Board hereby orders that Respondent,
Strippers , Inc., its officers , agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Transferring, discharging, or laying off and
refusing to reinstate or recall employees because of
their membership in or activities on behalf of
Southern Labor , Union or otherwise discouraging
membership in that Union.
•(b) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms, and
conditions of employment with Southern Labor
Union as the exclusive bargaining representative of
its employees in the following appropriate unit:
All production and maintenance employees of
the Respondent, at its Huntsville, Tennessee,
mine, but excluding office clerical employees,
guards, professional employees and supervisors as
defined in the Act.
(c) Granting new benefits to the employees in the
above-described unit, or otherwise changing their
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms and conditions of employment without prior
notification to and bargaining with the Union.
(d) Threatening to close the mine if the Union were
successful in its organizational campaign.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed then 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 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 employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Offer to Glenn C. Jeffers immediate and full
reinstatement to his former job at the Respondent's
strip mine, and to Roy D. Overton and Ernie A.
Baker their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their semonty or other rights and
privileges, and make each of them whole for any loss
of earnings suffered by reason of Respondent's
discrimination against them, in the manner set forth
in the section herein entitled "The Remedy."
(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) 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.
(e) Post at its plant in Huntsville, Tennessee, copies
of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, inconspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
I 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 be changed to 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 discourage membership in, or
activities on behalf of, any labor organization by
transferring, discharging, or laying off and failing
or refusing to reinstate or recall, or otherwise
discriminating in regard to the hire or tenure of
employment of any of our employees.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with South-
ern Labor Union as the exclusive representative
of the employees in the bargaining unit described
below.
WE WILL NOT make any changes in the terms or
conditions of our employees in the bargaining
unit described below without prior notification to
and bargaining with the Union.
WE WILL NOT threaten to close our mine if
Southern Labor Union is successful in its organi-
zational campaign.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive representa-
tive 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 agree-
ment. The bargaining unit is:
All production and maintenance employ-
ees at our Huntsville, Tennessee, mine, but
excluding office clerical employees, guards,
professional employees and supervisors as
defined in the Act.
WE WILL offer to Glenn C. Jeffers immediate
and full reinstatement to his former job at our
strip mine or, if that job no longer exists, to a
substantially equivalent position, without preju-
dice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any
loss of pay suffered as a result of his transfer or
discharge.
WE WILL offer to Roy D. Overton and Ernie A.
Baker immediate and full reinstatement to their
STRIPPERS, INC.
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimina-
tion practiced against them.
You are free to become and remain members of
Southern Labor Union or any other labor organiza-
tion.
STRIPPERS, INC.
(Employer)
Dated By
(Representative ) (Title)
295
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
Forces , in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , Peachtree Building, 730 Peachtree
Street NE ., Atlanta, Georgia 30308, Telephone
404-526-5760.