Newark Pipeline Co.

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newark Pipeline Company and International Union of Operating Engineers, Local No. 18, AFL-CIO. Case 8-CA-7127 March 7, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on July 20, 1972, by Interna- tional Union of Operating Engineers, Local No. 18, AFL-CIO, herein called the Union, and duly served on Newark Pipeline Company, herein called the Respondent, and on District 50, Allied and Techni- cal Workers of the United States and Canada, herein called District 50, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8, issued a complaint on September 6, 1972, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (2) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding, including District 50. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent violated Section 8(a)(1) and (2) of the Act by (1) on or about June 23, 1972, threatening employees that it would close its plant if they did not vote in a union by July 1, 1971, and that employees who failed or refused to not vote in a union by July 1, 1972, and that employees who failed or refused to support District 50 "can quit and go elsewhere"; (2) on or about June 23, 1972, requiring employees to attend a meeting which the Respondent also attended and at which it voted, encouraged employees to consider favorably District 50, threatened employees with discharge unless they signed District 50 authorization cards, and nominated a union steward for District 50 who was instructed to sign up employees; (3) during the week of June 23, 1972, took possession of the authorization cards in favor of District 50 and gave them to a District 50 representative; and (4) during the week of June 12, 1972, negotiated a tentative collective-bargaining agreement when District 50 did not represent a majority of employees and executed that agreement on July 1, 1972, when District 50 still did not represent an uncoerced majority. The Respondent thereafter filed a timely answer to the complaint admitting in part, and denying in part, the allegations in the complaint. By letter dated October 6, 1972, the Respondent filed a motion to withdraw its answer advising that the motion had been served on all interested parties, including District 50, and that it presumed that the Union, the Charging Party herein, would probably move for summary judgment. On October 17, 1972, the Regional Director issued an order granting with- drawal of answer, a copy of which was sent to, and received by, District 50. On November 2, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 9, 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. On the same date, the United Steelworkers of America, herein called Steelworkers, moved the Regional Director to intervene herein on the ground that, as a result of its recent merger with District 50, it had an interest in the instant matter. Thereafter, counsel for the General Counsel opposed the motion in his memorandum in opposition to United Steelworkers of America's motion to intervene contending that the motion was untimely and should be denied. Both the motion to intervene as an interested party and the memorandum in opposition were filed with the Board on November 17, 1972. By order of November 27, 1972, the Board granted the Steelworkers' motion to intervene for the purpose of filing directly with the Board a response to the Notice To Show Cause on or before December 8, 1972. The Steelworkers thereaf- ter filed an apparent response to Notice To Show Cause, called Answer, which was received by the Board on December 11, 1972. In its response, the Steelworkers, as a party to a collective-bargaining agreement with the Respondent, admitted in part and denied in part the allegations of the complaint and requested a hearing before an Administrative Law Judge. The Respondent did not file a response to the 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 202 NLRB No. 14 NEWARK PIPELINE COMPANY 235 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 served on the Respondent and District 50 also stated that unless an answer was filed to the complaint within 10 days from the service thereof, "all of the allegations of the complaint shall be deemed to be admitted to be true and may be so found by the Board." Although the Respondent timely filed an answer, its subsequent motion to withdraw the answer was granted by the Regional Director in his order of October 17, 1972. The withdrawal of an answer of necessity has the same effect as a failure to file an answer by the Respon- dent.' With respect to the Steelworkers, it appears, from the General Counsel's opposition to the Steelwork- ers' request to intervene, that District 50, with whom the Steelworkers merged on August 9, 1972, had been served with the charge, complaint and notice, the order granting the Respondent's request to withdraw its answer, and the Motion for Summary Judgment herein and had not filed an answer within 10 days after September 9, 1972, when the complaint had been served on District 50. The opposition also stated that on November 9, 1972, the Steelworkers for the first time expressed its interest in this proceeding by filing with the Regional Director a motion to intervene on the basis of its merger with District 50. The Steelworkers' response to the Notice To Show Cause on December 11, 1972, failed to controvert the aforesaid factual service averments of the General Counsel's opposition and, therefore, they stand admitted. It was not until December 11, 1972, long after the time for filing an answer to the complaint had expired, that the Steelworkers filed its response in the form of an answer denying the unfair labor practice allegations of the complaint herein. Neither in the response nor in its motions to intervene and opposition to summary judgment did the Steelworkers offer any excuse, explanation, or justification for its failure, and that of District 50, to file an answer or other objection to allegations of the complaint naming District 50 as an unlawfully assisted union2 timely with respect to the issuance of the complaint or the order granting Respondent's request to withdraw its answer. Accordingly, we find that the Steelworkers' answer, whether construed as an answer to the complaint or merely as opposition to the naming of District 50 as an unlawfully assisted union, was untimely filed and that the filing of such an untimely answer has the same effect as a failure to file an answer. As the Respondent has withdrawn its answer and as neither District 50 nor the Steelworkers, without good cause to the contrary, has filed a timely answer or other opposition, the allegations of the complaint herein are deemed to be admitted to be true and are so found to be true in accordance with the Board's Rules and Regulations. We shall, accordingly, 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 1. THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio corporation with principal offices and place of business located in Newark, Ohio, where it is engaged in the installation of natural gas pipelines. Annually, in the course and conduct of its business, the Respondent performs services valued in excess of $250,000 in the State of Ohio for Columbia Gas of Ohio, Inc., a wholly owned subsidiary of Columbia Gas Systems, Inc., which enterprise is a public utility affecting com- merce with a gross annual revenue of $250,000. Annually, in the course and conduct of its business operations, Columbia Gas of Ohio, Inc., purchases and receives goods valued in excess of $50,000 directly from suppliers outside the State of Ohio. 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 International Union of Operating Engineers, Local No. 18, AFL-CIO, and District 50, Allied and Technical Workers of the United States and Canada, are labor organizations within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES On or about June 23, 1972, the Respondent (1) threatened employees that it would close the plant 1 Nickey Chevrolet Sales, Inc, 199 NLRB No. 71. 2 Cf Retail Clerks Union 1059, Retail Clerks International Association, AFL-CIO v. N.LRB., 348 F.2d 369 (C.A.D.C.). 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless a union was voted in by July 1, 1972, and threatened all employees who failed or refused to support District 50 with the statement that "any man who does not want to go along with the majority, can quit and go elsewhere" and (2) instructed its employees to attend a mandatory meeting which was called to determine a collective-bargaining represent- ative and at which the Respondent (a) encouraged employees to consider District 50 because it would be more favorably disposed toward such union, (b) compared contracts of the Union and District 50, making comments favorable only towards District 50, (c) threatened discharge of employees who did not sign District 50 authorization cards within 30 days, (d) conducted a secret ballot election to determine whether or not District 50 should be the representative of the employees in which election only District 50 was considered and in which it voted, and (e) nominated a union steward for District 50 whom it instructed to sign up the employees with the District 50 authorization cards which it produced. During the week of June 23, 1972, the Respondent took possession of the authorization cards in favor of District 50 and on or about July 1, 1972, gave them to a representative of District 50. During the week of June 12, 1972, or thereabouts, the Respondent negotiated a tentative collective- bargaining agreement with District 50 when that union did not represent a majority of the employees and thereafter on July 1, 1972, when District 50 still did not represent an uncoerced majority, executed the aforesaid tentative agreement. Accordingly, we find that the Respondent, by the conduct described hereinabove in section III, inter- fered with, restrained, and coerced and is interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act and did render unlawful aid and assistance to District 50, and by such conduct the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (2) 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 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) and (2) 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. 0 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Newark Pipeline Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local No. 18, AFL-CIO, and District 50, Allied and Technical Workers of the United States and Canada, are labor organizations within the meaning of Section 2(5) of the Act. 3. By the acts and conduct described in section III, above, the Respondent has interfered with, restrained, and coerced and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed to them under 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) and (2) 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, Newark Pipeline Company, Newark, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Rendering aid and assistance to District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization of its employees. (b) Threatening its employees that it would close its plant unless a union was voted in by a certain date. (c) Threatening its employees who failed and refused to support District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, that they can quit and go elsewhere. (d) Requiring its employees to attend a meeting to determine a collective-bargaining representative and attending the meetin3. (e) Encouraging its employees at such a meeting to consider District 50, Allied and Technical Workers NEWARK PIPELINE COMPANY 237 of the United States and Canada, or any other labor organization, to which it was more favorably disposed. (f) Comparing contracts of International Union of Operating Engineers, Local 18, AFL-CIO, with those of District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, and making favorable comments only towards District 50, Allied and Technical Workers of the United States and Canada, or any other favored labor organization. (g) Threatening its employees with discharge for failing to sign authorization cards of the District 50, Allied and Technical Workers of the United States and Canada, or of any other labor organization. (h) Conducting and voting in a secret ballot election in which only District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, is considered by the employees. (i) Nominating a steward for District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, and instructing him to have its employees sign authorization cards of District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization. (j) Taking possession of signed authorization cards and turning them over to District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, for which they have been signed. (k) Negotiating and executing an agreement with District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, when it does not represent an un- coerced majority of the employees. (1) Negotiating and contracting with District 50, Allied and Technical Workers of the United States and Canada, as representative of any of its employ- ees for the purpose of dealing with said organization concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until said labor organization shall have demonstrated its exclusive majority status pursuant to a Board-con- ducted election among its employees. (m) Giving effect to, performing, or in any way enforcing in favor of District 50, Allied and Techni- cal Workers of the United States and Canada, the collective-bargaining agreement executed on July 1, 1972, or any modifications, extensions, supplements, or renewals thereof, or any other contract, agree- ment, or understanding entered into with said labor organization relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until said labor organization shall have demonstrated its exclusive majority status pursuant to a Board- conducted election among its employees. (n) In any other manner interfering with, restrain- ing, 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 policies of the Act: (a) Withdraw and withhold all recognition from District 50 as the collective-bargaining representative of any of its employees unless and until said labor organization shall have demonstrated its exclusive majority status pursuant to a Board-conducted election among its employees. (b) Post at its Newark, Ohio, location copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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. (c) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 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 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 render aid or assistance to District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization of our employees. WE WILL NOT threaten our employees that we will close our plant unless a union is voted in by a certain date. WE WILL NOT threaten our employees who fail and refuse to support District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, that they can quit and go elsewhere. WE WILL NOT require our employees to attend a 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting to determine a collective-bargaining representative and WE WILL NOT attend the meeting. WE WILL NOT encourage our employees at such a meeting to consider District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, to which we are more favorably disposed. WE WILL NOT compare contracts of Interna- tional Union of Operating Engineers , Local 18, AFL-CIO, with those of District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, and make favorable comments only towards District 50, Allied and Technical Workers of the United States and Canada, or any other favored labor organization. WE WILL NOT threaten our employees with discharge for failing to sign authorization cards of District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization. WE WILL NOT conduct and vote in a secret ballot election in which only District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, is considered by our employees. WE WILL NOT nominate a steward for Distnct 50, Allied and Technical Workers of the United States and Canada, or any other labor organiza- tion, and instruct him to have our employees sign authorization cards of Distnct 50, Allied and Technical Workers of the United States and Canada, or any other labor organization. WE WILL NOT take possession of signed authorization cards and turn them over to District 50, Allied and Technical Workers of the United States and Canada, or any other labor organiza- tion, for which they have been signed. WE WILL NOT negotiate and execute an agree- ment with District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization, when it does not represent an uncoerced majority of the employ- ees. WE WILL NOT negotiate and contract with District 50, Allied and Technical Workers of the United States and Canada, as representative of any of our employees for the purpose of dealing with said organization concerning grievances, labor disputes , wages, rates of pay, hours of employment, or other terms and conditions of employment, unless or until said labor organiza- tion shall have demonstrated its exclusive majori- ty status pursuant to a Board-conducted election among our employees. WE WILL NOT give effect to, perform, or in any way enforce in favor of District 50, Allied and Technical Workers of the United States and Canada, the collective-bargaining agreement ex- ecuted on July 1, 1972, or any modifications, extensions, supplements, or renewals thereof, or any other contract, agreement, or understanding entered into with said labor organization relating to grievances , labor disputes, wages, rates of pay, hours of employment, or other terms and condi- tions of employment, unless and until said labor organization shall have demonstrated its exclusive majority status pursuant to a Board -conducted election among our employees. ' 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. NEWARK PIPELINE COMPANY (Employer) Dated By (Representative) (Title) 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, 1695 Federal Office Building, 1240 East 9th Street, Cleveland, Ohio 44199, Telephone 216-522-3715.