Mid-American Gunite, Inc.

MID-AMERICAN GUNITE, INC. 345 NLRB No. 92 1119 Mid-American Gunite, Inc. and Local No. 142, Inter- national Brotherhood of Teamsters.1 Case 13– CA–42309 September 30, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the first amended complaint. Upon a charge filed by the Union on December 21, 2004, the General Counsel issued the first amended complaint on March 7, 2005, against Mid-American Gunite, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the Act. The Respondent failed to file an an- swer. On May 2, 2005, the General Counsel filed with the Board a Motion for Default Judgment. On May 3, 2005, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file a timely response.2 The allegations in the motion are therefore undisputed. Ruling on Motion for Default Judgment Section 102.20 of the Board's Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the first amended complaint affirma- tively stated that unless an answer was filed within 14 days of service, all the allegations in the first amended complaint would be considered admitted. Further, the undisputed allegations in the Motion for Default Judg- 1 We have amended the caption to reflect the disaffiliation of Local No. 142, International Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005. 2 Responses to the Notice to Show Cause were due by May 17, 2005. The only purported response was a facsimile received by the Executive Secretary’s Office on May 20, 2005, requesting an extension of time on the ground that the Respondent’s counsel was not served with the Mo- tion for Default Judgment. By letter of May 23, the Executive Secre- tary’s Office denied the requested extension, stating that, based on signed return post office receipts and U.S. Postal Service on-line track- ing confirmations, it appears that both the Respondent and its counsel were properly served with the Motion for Default Judgment, as well as all other operative documents. The General Counsel's affidavit of service and the signed return post office receipts constitute sufficient prima facie proof that the Respondent and its counsel were served with the Motion for Default Judgment. The Respondent's bare denial fails to rebut the prima facie proof or to create an issue of fact warranting a hearing. See Sec. 102.113 of the Board’s Rules and Regulations (speci- fying that charges, complaints, and other “process and papers by the Agency” may be served by certified mail and that a return post office receipt shall be proof of service by this method). ment disclose that the Region, by letter dated April 19, 2005, notified the Respondent that unless an answer was received by April 25, 2005, a Motion for Default Judg- ment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Michigan cor- poration with an office and place of business in Griffith, Indiana, has been engaged in the construction business. During the calendar year proceeding issuance of the first amended complaint, the Respondent, in conducting its operations described above, provided goods and ser- vices valued in excess of $50,000 directly to points lo- cated outside the State of Indiana. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Local No. 142, International Brotherhood of Teamsters (the Union) is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals, listed opposite the appropriate titles, have been supervisors and agents of the Respondent within the meaning of Section 2(11) and 2(13) of the Act: Gerald K. Emerson Vice President Frank Kuderik Vice President The employees of the Respondent, as described in arti- cle 1, sections 3–4 and article 11, section 5 of the local agreement between the Union and the Industrial Contrac- tors Association, Inc., of which the Respondent is a member, effective from August 4, 2003 to May 31, 2006, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. At all material times, the Union has been the desig- nated exclusive bargaining representative of the unit and has been recognized as such by the Respondent. This recognition is embodied in successive collective-bar- gaining agreements, the most recent of which are the National Maintenance Agreement (with the International Brotherhood of Teamsters) and the Local agreement be- tween the Union and the Industrial Contractors Associa- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1120 tion, Inc., which are effective from August 4, 2003 to May 31, 2006.3 At all material times, based on Section 9(a) of the Act, the Union has been, and continues to be, the exclusive bargaining representative of the unit named above for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On about December 1, 2004, the Union, by letter, re- quested that the Respondent furnish the Union with the following information: (i) The number of days along with the dates and hours worked by Mike Robinson from the beginning to the end of his job. (ii) Number of hours and days and dates worked by the two non-[union] members that drove semis on the jobsite. The information requested by the Union, as described above, is necessary for, and relevant to, the Union’s per- formance of its duties as the exclusive collective- bargaining representative of the unit. Since December 20, 2004 and continuing, the Respon- dent has failed and refused to furnish the Union with the information requested by it. CONCLUSION OF LAW By failing and refusing to furnish the Union with the information it requested by letter on about December 1, 2004, the Respondent has failed and refused to bargain collectively and in good faith with the exclusive collec- tive-bargaining representative of its unit employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. Citing, inter alia, his personal positions in TNT Logis- tics North America, Inc., 344 NLRB No. 61 fn. 3 (2005), and Artesia Ready Mix Concrete, 339 NLRB 1224, 1228–1230 (2003), our dissenting colleague would deny the General Counsel’s Motion for Default Judgment. In his view, a violation of Section 8(a)(5) has not been es- tablished because it is not apparent from the complaint allegations how the requested information is relevant to 3 Although the first amended complaint alleges that the Respondent is a member of the Industrial Contractors Association, Inc., there is no contention that the Respondent has delegated to the Association the authority to bargain on its behalf. There is also no contention that the Respondent’s unit employees have at any time been part of a multiem- ployer bargaining unit. Accordingly, absent any indication of the req- uisite consent for multiemployer bargaining, we shall assume that the unit is a single employer unit. We also note that the remedy herein (supply information) does not depend on whether the unit is single employer or multiemployer. the Union’s performance of its duties as the employees’ bargaining representative. We disagree. As in TNT Logistics, supra, 344 NLRB No. 61 fn. 3, and Artesia Ready Mix Concrete, 339 NLRB at 1225– 1227, the central fact in this case is that the Respondent has failed to file a timely answer to the first amended complaint and has thereby effectively admitted all the complaint allegations. Thus, the Respondent has admit- ted that all the requested information is “necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative” of the unit employees. The Respondent’s admission of the relevance of the requested information is sufficient to support an unfair labor practice finding. See, e.g., TNT Logistics, supra; Artesia Ready Mix Concrete, supra. Consequently, it is appropriate to grant the Motion for Default Judgment based on the Respondent’s failure to answer the first amended complaint.4 REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(1) and (5) by failing and refusing to furnish the Union with information that is relevant and necessary to its role as the exclusive bargaining representative of the unit em- ployees, we shall order the Respondent to furnish the Union with the information it requested by letter on about December 1, 2004. ORDER The National Labor Relations Board orders that the Respondent, Mid-American Gunite, Inc., Griffith, Indi- ana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to furnish Local No. 142, In- ternational Brotherhood of Teamsters with information that is necessary for and relevant to the performance of its duties as the exclusive collective-bargaining represen- tative of the employees in the appropriate bargaining unit referred to in article 1, sections 3–4 and article 11, sec- tion 5 of the local agreement between the Union and the Industrial Contractors Association, Inc., effective from August 4, 2003 to May 31, 2006. 4 In granting the motion, Chairman Battista notes that the underlying charge, attached to the General Counsel’s motion, identifies the griev- ant as a member of the Union and thus presumably in the bargaining unit. In addition, notwithstanding a Notice to Show Cause, the Re- spondent never responded at all, much less responded with a contention that the grievant was a nonunit employee. Both the motion and the notice are part of the formal pleadings in the case. MID-AMERICAN GUNITE, INC. 1121 (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish the Union with the information it requested on about December 1, 2004. (b) Within 14 days after service by the Region, post at its facility in Griffith, Indiana, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 20, 2004. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. MEMBER SCHAUMBER, dissenting. Contrary to my colleagues, I find entry of a default judgment is inappropriate in this case because the allega- tions of the complaint, taken as true, fail to establish a violation of the Act. An employer is required to provide a union with in- formation necessary and relevant to the union’s perform- ance of its duties as the exclusive collective-bargaining representative. Failure to provide such information when requested is a violation of Section 8(a)(5). Now, then, while information relating to unit matters is presump- tively relevant, information pertaining to nonunit matters is not. In the latter situation, the relevance of the infor- mation must be demonstrated by the union before the employer’s disclosure obligation is triggered. In this case, the complaint failed to allege facts sufficient to establish the relevance of the requested information. 5 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” The complaint alleges that the Respondent refused to furnish the Union with information on the number of days, along with the dates and hours, worked by Mike Robinson from the beginning to the end of his job; and the number of hours and days and dates worked “by the two non-[union] members that drove semis on the job site.” The complaint on its face does not allege that Mike Robinson is a unit employee. If Robinson is a nonunit employee, the complaint does not allege that the relevance of the requested information was demonstrated by the Union. Similarly, it is not apparent from the alle- gations of the complaint how the requested information about the “two non-[union] members” is necessary and relevant. “A default judgment is unassailable on the merits, only so far as it is supported by well pleaded allegations as- sumed to be true.” Nishimatsu Construction Co. v. Houston National Bank, 515 F.2d 1200, 1206 (5th Cir. 1975), citing Thomson v. Wooster, 114 U.S. 104 (1885). Since the allegations of this complaint are not well pleaded—they fail to adequately allege a violation of the Act—I would deny the General Counsel’s motion. See generally for a fuller explication of my position on this issue, TNT Logistics North America, Inc., 344 NLRB No. 61 fn. 3 (2005) and Artesia Ready Mix Concrete, 339 NLRB 1224, 1228–1230 (2003), and the cases cited therein. In response, my colleagues in the majority rely on summary language in the complaint that the requested information was “necessary for, and relevant to, the Un- ion’s performance of its duties as the exclusive collective bargaining representative. . . .” They then conclude that by not answering the complaint, the Respondent has ad- mitted the information’s relevance. Such a finding, how- ever, is not supported by the complaint allegations.1 The complaint in this case does not allege that the requested information involved unit employees. Thus, the informa- tion requested may have been nonunit information, in which case the complaint should have alleged that the relevance of such information was demonstrated by the Union to the Respondent. Because the complaint does not allege either that the information involved unit em- ployees or that the information’s relevance was demon- strated to the Respondent, the complaint is not well pleaded. Consequently, as mentioned, consistent with 1 As the General Counsel’s complaint, not the underlying charge filed by a party, is the operative document in a Board proceeding, the complaint must allege all of the facts necessary for a finding of a viola- tion. See Freeman Decorating Co., 335 NLRB 103, 105 (2001) (“When a Board complaint issues, the question is only the truth of its accusations. The charge does not even serve the purpose of a plead- ing.” quoting NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 17 (1943).) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122 the Supreme Court’s decision in Thomson v. Wooster, supra, the complaint is insufficient to support entry of a default judgment.2 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union 2 The standard set by the Supreme Court in Thomson v. Wooster, su- pra, has been left unaltered by the Court and it has been consistently followed by the circuit courts. See cases cited in Artesia Ready Mix Concrete, supra (Member Schaumber, dissenting). The Supreme Court established this well-pleaded complaint standard as a minimum stan- dard in lieu of the English chancery procedure of granting a default judgment only after an ex parte examination of the case. Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to furnish Local No. 142, International Brotherhood of Teamsters with information necessary for and relevant to the performance of its du- ties as the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit re- ferred to in article 1, sections 3–4 and article 11, section 5 of the local agreement between the Union and the In- dustrial Contractors Association, Inc., effective from August 4, 2003, to May 31, 2006. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL furnish the Union with the information it re- quested by letter on about December 1, 2004. MID-AMERICAN GUNITE, INC.