T & T Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 4, 1979

244 N.L.R.B. 790 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
T & T Industries, Inc. and Daniel W. Jagodzinski.
Case 7-CA 15713
September 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on October 30, 1978, by Daniel
W. Jagodzinski, an individual, herein called the
Charging Party, and duly served on T & T Industries,
Inc., herein called Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 7, issued a complaint and
notice of hearing on December 15, 1978, against Re-
spondent alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(l) and
(4) 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 adminis-
trative law judge were duly served on the parties to
this proceeding.
With respect to the alleged unfair labor practices
the complaint alleges, in substance, that (I) the Re-
spondent suspended the Charging Party on or about
June 30 and July 12, 1978, because the Charging
Party had filed charges and otherwise assisted the
Board in the resolution of matters pending before it
under the Act, and (2) the Respondent suspended the
Charging Party on August 31, 1978, because of his
refusal to drive a tractor and trailer which he believed
would be injurious to his health and safety, and that
on September 19, 1978, Respondent discharged the
Charging Party. Neither Respondent nor its receiver
in bankruptcy has filed an answer to the complaint.
On June 8, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment with exhibits attached based on Respon-
dent's failure to file an answer as required by Section
102.20 of the Board's Rules and Regulations, Series 8,
as amended. Subsequently, on June 20, 1979, the
Board issued an Order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Thereafter, Respondent did not file a
response to the Notice To Show Cause, so the allega-
tions of the Motion for Summary Judgment stand un-
controverted.
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:
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 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 admit-
ted 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 issued on De-
cember 15, 1978, pursuant to charge duly served on
Respondent on November 7, 1978, specifically state
that unless an answer to the complaint is filed by Re-
spondent 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 al-
legations of the Motion for Summary Judgment,
counsel for the General Counsel, by letter dated
March 7, 1979, and attached to the Motion for Sum-
mary Judgment, advised Respondent that an answer
had not been received, requested that one be filed by
March 12, 1979, and stated that if Respondent failed
to answer counsel for the General Counsel would
move for summary judgment. No answer was re-
ceived.
In view of Respondent's failure to answer, under
the rule set forth above, and no good cause having
been shown for such failure, the allegations of the
complaint are deemed admitted and are found to be
true.' Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the record the Board makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation in Detroit, Michigan,
engaged in the business of repairing steel shipping
I Jerry C Wilson, Curtis Wilson and Rodney '. Wilson d/b/a Wilson
Sons, 193 NLRB 350 (1971). and cases cited therein.
244 NLRB No. 120
790
T & T INDUSTRIES, INC.
containers for the automotive industries. During the
year ending September 1978 in the course and con-
duct of its business operations Respondent performed
services valued in excess of $100,000, which services
were performed for various enterprises located in
States other than the State of Michigan.
We find on the basis of the foregoing that Respon-
dent 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. II! L.ABOR ORGANIZATION INVO.VEDI)
Local 267, International Union, Allied Industrial
Workers of America, AFL-CIO. is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRAC'II('ES
On or about June 30, 1978. Respondent. by its su-
pervisor and agent. Kevan Woodson, suspended
Daniel W. Jagodzinski, the Charging Party herein,
because the Charging Party had filed charges, testi-
fied, and otherwise assisted the Board in the resolu-
tion of matters pending before it under the Act. Re-
spondent, by its agent Kevan Woodson, again
suspended the Charging Party on July 12, 1978, and
but for the suspension of the Charging Party on June
30, 1978, would not have suspended the Charging
Party on July 12. 1978.
Accordingly, we find that Respondent did discrimi-
nate and is discriminating against employees for filing
charges and giving testimony under the Act, and that
Respondent thereby did engage in and is engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(4) and (1) of the Act.
On or about August 31, 1978, Daniel W. Jagodzin-
ski, the Charging Party, at Respondent's place of
business, refused to drive a tractor and trailer which
the Charging Party alleged to be unsafe because it
was improperly loaded and had not been properly
checked for safety defects. The Charging Party's re-
fusal was caused by his good-faith attempts to exer-
cise his contractual right to refuse to do a job which
would be injurious to his health and safety. Respon-
dent, by its supervisor and agent, William Saunders,
suspended the Charging Party on or about August 31,
1978, because of his refusal to drive the tractor and
trailer. On or about September 19, 1978, Respondent,
by its supervisor and agent Kevan Woodson, dis-
charged the Charging Party. But for the Charging
Party's suspension for refusing to drive the tractor
and trailer because it was alleged unsafe Respondent
would not have discharged the Charging Party.
Accordingly. we find that by suspending and dis-
charging the Charging Party for refusing to drive a
tractor and trailer which he alleged to be unsafe and
was thereby attempting in good faith to exercise his
contractual right to refuse to do a job which would be
injurious to his health and safety. Respondent did in-
terfere with, restrain. and coerce and is interfering
with, restraining, and coercing its employees in the
exercise of the rights guaranteed them in Section 7 of
the Act and thereby did engage in and is engaging in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) of the Act.2
IV. THE EFFECT OF THlE UNFAIR I.ABOR PRA('II( S
UPON (OMMER('Ii
The activities of Respondent set forth in section
111, above, occurring in connection with its operations
described in section 1. above, have a close. intimate.
and substantial relationship to trade, traffic. and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
TIlE 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 (4) of the Act, we shall
order that it cease and desist therefrom. and that is
take certain affirmative action as set forth below de-
signed to effectuate the purposes of the Act.
Having found that Respondent liscriminatorily
suspended Daniel W. Jagodzinski. the Charging
Party, we shall order that Respondent offer him im-
mediate and full reinstatement to his formerjoh or. if
that job no longer exists, to a substantially equivalent
position. without prejudice to his seniority or any
other rights and privileges previously enjoyed, and
make him whole for any loss of earnings he may have
suffered by reason of such discrimination by pay ment
of a sum of money equal to that which he normally
would have earned as wages from the date of suspen-
sion to the date of said offer of reinstatement, less his
interim net earnings. Backpay shall be computed in
accordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289, 294 (1950), with inter-
est as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).)
2 The collective-bargaining agreement between Local 267 and Respondent
provides in part:
Section 9. (A) The Company will make all necessary pro)vslons for
the Safety and Health of its employees. All machiner and equipment
shall be kept in safe working order at all times and the (ompano shall
provide all employees with all the necessary satelt equipment, and
safety devices. No employee will he required to work on ans joh or
operation under conditions which would he injurious to his health or
safety.
I See, generally. Isis Plumbing & Heating ( . 138 NL.RB 716 1621
791
I)I (ISI()NS ()0 NAI IONAL LABOR RELATIONS BOARD
The oard. upon the basis of the foregoing facts
and the enitire record. makes the following:
C(()N(L.lSI()NS () LAW
1. T & T Industries. Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 267, International Union. Allied Indus-
trial Workers of America, AFL CIO. is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. By suspending Daniel W. Jagodzinski, the
Charging Party, on June 30, 1978, and again on July
12, 1978. because he had filed charges and otherwise
assisted the Board in the resolution of matters by giv-
ing testimony under the Act Respondent has engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(1) and (4) of the Act.
4. By suspending Daniel W. Jagodzinski. the
Charging Party, on August 31, 1978, and later dis-
charging him on September 19, 1978, because of his
refusal to drive a tractor and trailer which he alleged
was unsafe as it was improperly loaded and had not
been properly checked for safety defects, in a good-
faith attempt to exercise his contractual right to re-
fuse to do a job which would be injurious to his
health and safety, Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
5. 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 Selection 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, T &
T Industries, Inc., Detroit, Michigan, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Suspending its employees or by any other
means discriminating in regard to their hire or tenure
or terms or conditions of employment in order to dis-
courage employees from filing charges and giving tes-
timony under the Act or otherwise assisting the
Board in resolution of matters pending before it un-
der the Act.
(b) Discharging or suspending its employees be-
cause of their refusal to drive tractors and trailers
which they allege as unsafe or by any other means
interfering with their good-faith attempts to exercise
their contractual right to refuse to do a job which
would be injurious to their health and safety.
(c) In any like or related manner interfering with,
restraining, or coercing 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 Act:
(a) Offer Daniel W. Jagodzinski, the Charging
Party, immediate and full reinstatement to his former
position or, if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights and privileges previously
enjoyed, and make him whole for any loss of pay he
may have suffered as a result of the discrimination
against him in the manner set forth in the section
above entitled "The Remedy."
(b) 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.
(c) Post at its Detroit, Michigan, place of business
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the Re-
gional Director for Region 7, 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 thereafter, in
conspicuous places, including all places where notices
to employees 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.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
I In the event that this Order is enforced by a Judgment of the Utnited
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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional 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 suspend any of our employees
or by any other means discriminate in regard to
their hire or tenure or terms or conditions of em-
ployment, in order to discourage employees from
filing charges and giving testimony under the
Act, or otherwise assisting the Board in resolu-
tion of matters pending before it under the Act.
T & T INDUSTRIES, INC.
WE WILL NOT discharge or suspend any of our
employees because of their refusal to drive trac-
tors and trailers which they allege as unsafe, or
by any othe, means interfere with their good-
faith attempt to exercise their contractual right
to refuse to do a job which would be injurious to
their health and safety.
WE WILL.. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WIL.L offer Daniel W. Jagodzinski immedi-
ate and full reinstatement to his former position
or, if the position no longer exists, to a substan-
tially equivalent position, without prejudice to
his seniority or any other rights and privileges
previously enjoyed. and wt-. WIL. make him
whole for any loss of pay he may have sutffered
as a result of the discrimination against him, plus
interest.
T & T INI)t SIRIS. IN(.
793