American Steel Line Co.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Steel Line Co. and Local No. 527, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 7-CA- 17204 May 7, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE Upon a charge filed on December 20, 1979, by Local No. 527, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on American Steel Line Co., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on January 9, 1980,1 against Respondent, alleging that Respond- ent had engaged in and was 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 National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on September 11, 1979, following a Board election in Case 7-RC- 15453, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate; 2 and that, commencing on or about October 29, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. In a letter to the Regional Director for Region 7, dated January 15, Respondent's general manager stated, inter alia, "When the Labor Board can prove to me that the teamsters are not habitual criminals, I will negotiate a contract. I would like the Labor Board and the Teamsters to take me to court, so I can show the [un-American and crimi- All dates herein are in 1980, unless otherwise indicated. 2 On April 7 and 15, pursuant to administrative request by the Board, the Region filed with the Board the documents comprising the record in the representation proceeding, Case 7-RC 15453. The Region indicated in its submissions that parties to the case had also been served by certified mail with copies of the above-mentioned documents. Official notice is taken of this record as the term "record" is defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystemi, Inc., 166 NL.RI½ 938 (1967), enfd 388 F.2d 683 (4th Cir. 1968); Golden .4ge Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Interlypte Co. v. Penelo, 269 F Supp. 573 (D.C Va 1967); Follett Corp., 164 NLRB 378 (1967)., enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as mended. 249 NLRB No. 53 nal] way the Teamsters operate in the United States of America." In response to this communica- tion, in a letter dated January 23, the Regional Di- rector informed Respondent that the Regional Office was uncertain as to whether the aforemen- tioned letter was intended to constitute Respond- ent's answer to the complaint and, if such were the case, the Regional Office wished to be so notified in writing. Further, Respondent was advised that its January 15 letter did not comply with Sections 102.20 and 102.21 of the Board's Rules and Regula- tions, regarding a proper answer. The Regional Di- rector then extended the date for submission of such an answer to February 4. In an affidavit dated February 6, the Regional Director asserted that, as of that date, no correspondence had been received from Respondent other than the January 15 letter and, thus, no proper answer had been filed. Thereafter, on February 11, counsel for the Gen- eral Counsel filed directly with the Board a Motion for Summary Judgment based on Respondent's fail- ure to file a proper answer as of the date of its motion under the Board's Rules and Regulations set out above. Subsequently, on February 20, 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 Judg- ment should not be granted, stating that a response should be filed by March 5. Respondent did not file a response to the Notice To Show Cause and, therefore, the allegations of the Motion for Sum- mary 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 as follows: 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 AMERICAN STEEL LINE CO. 381 so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing served on Respondent specifically stated that, unless an answer is filed to the complaint within 10 days from the 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." As out- lined above and as set out in the uncontroverted al- legations of the Motion for Summary Judgment, Respondent replied to the complaint by a letter in which it stated that it would not negotiate with the Union until it was satisfied that the Teamsters "are not habitual criminals," and in which it requested to be taken to court to show just that. Respondent was informed by the Regional Director that its letter did not comply with the Board's rules re- garding valid answers, and that it should notify the Regional Office if it wished the aforementioned letter to constitute its answer. In addition, the Re- gional Director extended the time for submission of a proper answer to February 4. However, no fur- ther communication was received from Respond- ent. Assuming, arguendo, that the letter was intend- ed to be an answer to the complaint, it is improper under Section 102.20 of the Rules and Regulations, because it does not specifically admit, deny, or ex- plain each of the facts alleged in the complaint. Therefore, as Respondent has not filed an answer acceptable under the Board's Rules and Regula- tions within 10 days from the service of the com- plaint, or within the extended time afforded it by the Regional Director, and as no good cause for its failure to do so has been shown, in accordance with the rule set forth above, the allegations of the complaint are deemed to be admitted to be true and are so found to be true. Accordingly, we grant the General Counsel's Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: Findings of Fact I. THE BUSINESS OF RESPONDENT Respondent American Steel Line Co., an individ- ual proprietorship, at all times material herein, has maintained an office and a place of business at 210 East Broadway Avenue, Muskegon Heights, Michi- gan, the only facility of Respondent involved herein. Respondent is, and has been at all times ma- terial herein, engaged in the fabrication and nonre- tail sale of steel. During the year ending December 31, 1979, a representative period, Respondent pur- chased and caused to be transported and delivered to its Muskegon Heights facility, directly from points located outside the State of Michigan, steel and other goods and materials valued in excess of $50,000. 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 LABOR ORGANIZATION INVOLVED Local No. 527, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation 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 employees employed by Respondent at its facility located at 210 East Broadway Avenue, Muskegon Heights, Michigan; but excluding all office clerical employees, truckdrivers, guards and supervisors as defined in the Act. 2. The certification On August 13, 1979, 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 7, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certi- fied as the collective-bargaining representative of the employees in said unit on September 11, 1979, and the Union continues to be such exclusive rep- resentative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about October 29, 1979, 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 October 29, 1979, 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- AMERICAN STEEL LINE CO. 381 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 29, 1979, 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 (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, 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; Burnett Construction 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: Conclusions of Law 1. American Steel Line Co. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 527, 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 employees employed by Respondent at its facility located at 210 East Broadway Avenue, Muskegon Heights, Michigan; but excluding all office clerical employees, truckdrivers, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Since September 11, 1979, 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 October 29, 1979, 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 them in Section 7 of the Act, and thereby has en- gaged 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, American Steel Line Co., Muskegon Heights, Michigan, 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 Local No. 527, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All employees employed by Respondent at its facility located at 210 East Broadway Avenue, Muskegon Heights, Michigan; but excluding all office clerical employees, truckdrivers, guards 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. AMERICAN STEEL LINE CO. 383 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 Muskegon Heights, Michigan, fa- cility copies of the attached notice marked "Ap- pendix." 3 Copies of said notice, on forms provided by the Regional 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. a 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 Pursu- ant 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 refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local No. 527, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers 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 WILL, 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 employees employed by the Employer at its facility located at 210 East Broadway Avenue, Muskegon Heights, Michigan; but excluding all office clerical employees, truckdrivers, guards and supervisors as de- fined in the Act. AMERICAN STEEL LINE Co. AMERICAN STEEL LINE CO. 383