Gamco Industries

National Labor Relations Board - Board Decisions

Jul 21, 1980

250 N.L.R.B. 846 (N.L.R.B. 1980)

DFECISIONS ()OF NATIONAL LABOR RELATIONS BOARD
FMG Industries d/b/a Gamco Industries and Mis-
cellaneous Warehousemen, Drivers & Helpers,
Local 986, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 21 -CA- 18633
July 21, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEIMBERS
JENKINS AND TRUESDAI.E
Upon a charge filed on January 30, 1980, by
Miscellaneous Warehousemen, Drivers & Helpers,
Local 986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union, and duly served on
FMG Industries d/b/a Gamco Industries, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 21, issued a complaint and notice
of hearing on March 10, 1980, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge
and complaint and notice of hearing before an ad-
ministrative law judge were duly served on the
parties to this proceeding. Since Respondent re-
fused to accept service by mail, the Regional Di-
rector caused copies of the charge, complaint, and
notice of hearing before an administrative law
judge to be personally served at Respondent's busi-
ness address.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 15,
1980, following a Board election in Case 21-RC-
15846 the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about January 18, 1980,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. Respondent has failed
to file an answer to the complaint.
On May 22, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment based on Respondent's failure to
()Officiail tice is laken or the record IIn Ihe reprcil1allon prol.ee d-
ing. Ca. e 21 RC 15846. a the ternml rLcord" i defined in Sec, 1)12 8
and 1)2 6h(g) Of Ihe Ioard s Rule, and Rcguhlili n Ici. Scric 8, a. ;Imilcnlded
See tI ' E/e1 IClro slernl Iin., 166I NIRBI 918 (11'h7), clld 188 1 2d h83
(4th Cir 1968) (,lGdet rlge tl' tverug Co. 167 NI RH 151 I ('h71. c6Id 415
F2d 26 (th Cir 196'): lntrrrtpc ('. IXnL/hi 26')9 Stipp 573
(D C Va 19h7); id/.l h Co rp . Ih4 NI RIl 178 (1967), ctfd 3197 I 2d 'l
(7th Cir 1908): Sec 9q(d) of Ih Nl RA, ;I itllcnLtdCL
250 NLRB No. 129
file an answer and Section 102.20 of the Board's
Rules and Regulations, Series 8, as amended. Sub-
sequently, on May 27, 1980, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent failed to file a response to
Notice To Show Cause and, accordingly, the alle-
gations of the Motion for Summary Judgment
stand uncontroverted.
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:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. 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
Respondent specifically states that, unless an
answer to the complaint is filed within 10 days of
service thereof, all of the allegations in the com-
plaint shall be deemed to be true and may be so
found by the Board. 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.
Accordingly, under the rule set forth above, no
good cause having been shown for the failure to
file a timely answer, the allegations of the com-
plaint are deemed admitted and are found to be
true. We shall grant the General Counsel's Motion
for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
846
GAMC() INDUSTRIES
FINI)IN(;S OF F\AC
I. THIE BUSINE-SS OF RESPONI)iN I
Respondent is. and has been at all times material
herein, a California corporation engaged in the
manufacture of material handling equipment.
During the past year, in the normal course and
conduct of its business operations, Respondent sold
and shipped goods and products valued in excess
of $50,000 directly to customers located outside the
State of California.
We find, on the basis of the foregoing, that Re-
spondent 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 l ABOR ORGANIZATION INVOLVED
Miscellaneous Warehousemen, Drivers & Help-
ers, Local 986, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representration Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men and truckdrivers employed by Respond-
ent at its facility located at 4900 South Soto
Street, Vernon, California; excluding all office
clerical employees, guards, professional em-
ployees and supervisors as defined in the Act.
2. The certification
On January 7, 1980, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 21, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on January 15, 1980, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. ihe Request 1o Bargain and Respondents
Refusal
Commencing on or about January 18, 1980. and
at all times thereafter. the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about January 18, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
January 18, 1980, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal. Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCI
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section 1, above. have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company. Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
847
DECISIONS ()F NATIONAL L.ABOR REI.ATIONS BOARD
BurnettConstruction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI.USIONS OF LAW
1. FMG Industries d/b/a Gamco Industries, is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Miscellaneous Warehousemen, Drivers &
Helpers, Local 986, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees,
shipping and receiving employees, warehousemen,
and truckdrivers employed by Respondent at its fa-
cility located at 4900 South Soto Street, Vernon,
California; excluding all office clerical employees,
guards, professional employees, and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since January 15, 1980, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about January 18, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
to them 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) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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,
FMG Industries d/b/a Gamco Industries, Vernon,
California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Miscellaneous War-
ehousemen, Drivers & Helpers, Local 986, Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America, as the exclu-
sive bargaining representative of its employees in
the following appropriate unit:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men and truckdrivers employed by Respond-
ent at its facility located at 4900 South Soto
Street, Vernon, California; excluding all office
clerical employees, guards, professional em-
ployees and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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) 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its facilities in Vernon, California,
copies of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the
Regional Director for Region 21, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 21,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
2 In the e'ent Ihalt this Order is enforced by a Judgment of a Uniled
Slates Court of Appeak. the words ill the notice reading "'olted by
Order of the National [.aahor RelationlHoard shall read 'Polied 'ursu-
ant to a Judgment of the United Slate' Court of Appeals enforcing an
Order of the Natilonal Lablhr Relations Board "
848
GAMCO INDUSTRIES
APPENDIX
NoTicI To EMPLOYEE.S
POSTED RY ORDER 01 ITHE
NATIONAL LABOR REILATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Miscellaneous Warehousemen, Drivers &
Helpers, Local 986, InLcrnational Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
HIpcers of America, as the exclusive repre-
sentative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WUI. , upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees,
shipping and receiving employees, warehou-
semen and truckdrivers employed by us at
our facility located at 4900 South Soto
Street, Vernon, California; excluding all
office clerical employees, guards, profession-
al employees and supervisors as defined in
the Act.
FMG INDUSTRIES D/B/A GAMCO
INDUSTRIES
849