National Window Cleaning of Dutchess

NATIONAL WINDOW CLEANING OF DUTCHESS National Window Cleaning of Dutchess, Inc. and Local 200, Service Employees International Union, AFL-CIO. Case 3-CA-6872 September 30, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge filed on December 20, 1976, by Local 200, Service Employees International Union, AFL-CIO, herein called the Union, and duly served on National Window Cleaning of Dutchess, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint and notice of hearing on April 26, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning in Sections 8(a)(5) and (1) 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. Respondent failed to file an answer to the complaint. On June 7, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 16, 1977, 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. Respondent did not file a response to the Notice To Show Cause and therefore the allegations in the complaint and Motion for Summary Judgment stand uncontroverted. 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: 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 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 232 NLRB No. 108 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 herein 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 admitted to be true and may be so found by the Board." Further, according to the uncontroverted allegations of the Motion for Summary Judgment, Respondent was also personally served on May 18, 1977, with a true copy of the complaint and notice of hearing, and then advised, by telephone and a letter dated May 20, 1977, that unless an answer was filed by May 27, 1977, a Motion for Summary Judgment would be sought. As noted above, Respondent has failed to file an answer to the complaint or to respond 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 complaint are deemed admitted and are found to be true, and we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times material herein, a New York corporation with its principal office and place of business located in Poughkeepsie, New York, where it is engaged in the business of providing and performing window cleaning and general office cleaning and related services. During the past year, Respondent per- formed services in excess of $50,000 for enterprises located in the State of New York, which annually receive goods and materials valued in excess of $50,000 directly from points located outside the State of New York and annually ships goods and materials valued in excess of $50,000 directly to points located outside the State of New York. 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. 687 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Local 200, Service Employees International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Unit The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All light-duty cleaners, heavy-duty cleaners, window cleaners, and watchmen employed by the Respondent at its Poughkeepsie, New York, location; excluding all guards and supervisors as defined in the Act. B. Respondent's Refusal To Bargain Respondent and the Union have been parties to a series of successive collective-bargaining agreements covering the unit described above. The most recent agreement, by its terms, was to expire on or about October 31, 1976. However, on or about October 1, 1976, the parties agreed in writing to extend the collective-bargaining agreement until a new agree- ment was signed. Nonetheless, since in or about August 1976, and continuing to date, Respondent, without notifying the Union or affording the Union an opportunity to bargain on the matter, has unilaterally ceased and refused and continues to cease and to refuse to remit to the Union the payment of dues and the payments to the Union's welfare and pension fund as required in the collective-bargaining agreement described above. Accordingly, we find that, by the conduct de- scribed above, Respondent 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 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)(5) and (1) 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. As Respondent, since in or about August 1976, has ceased and refused to remit to the Union the payment of dues and the payments to the Union's welfare and pension fund as required by the collective-bargaining agreement of the parties, as extended by their written agreement, we shall order that Respondent remit to the Union and its welfare and pension fund those moneys owed, since Respon- dent unilaterally ceased payments, together with interest computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).1 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. National Window Cleaning of Dutchess, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 200, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All light-duty cleaners, heavy-duty cleaners, window cleaners, and watchmen employed by the Respondent at its Poughkeepsie, New York, loca- tion; excluding all guards 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. By the acts described in section III, B, above, Respondent did refuse to bargain collectively, and is refusing to bargain collectively, with the representa- tive of its employees and thereby did engage in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By the acts described in section III, B, above, Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby did engage in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 688 NATIONAL WINDOW CLEANING OF DUTCHESS ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, National Window Cleaning of Dutchess, Inc., Poughkeepsie, New York, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Unilaterally failing and refusing to remit to the Union payment of dues and the payments to the Union's welfare and pension fund required by the collective-bargaining agreement in effect between the parties, as extended by their written agreement. (b) Refusing to give effect and to comply fully with the collective-bargaining agreement with Local 200, Service Employees International Union, AFL-CIO, as extended by their written agreement, with respect to Respondent's employees in the following appro- priate unit: All light-duty cleaners, heavy-duty cleaners, window cleaners, and watchmen employed by the Respondent at its Poughkeepsie, New York, location; excluding all guards and supervisors as defined in the Act. (c) In any like or related manner failing or refusing to bargain collectively with Local 200, Service Employees International Union, AFL-CIO, as the exclusive representative of all employees in the appropriate bargaining unit and thereby interfering with, restraining, and coercing its employees with respect to rights protected by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Resume the payment of dues to the Union and moneys to the Union's welfare and pension fund pursuant to the collective-bargaining agreement between the parties, as extended by their written agreement, and make restitution for payments not made in the past in the manner set forth in the section of this Decision 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 Poughkeepsie, New York, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 3, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3. in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 2 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 refuse to give effect to and to comply fully with the collective-bargaining agree- ment with Local 200, Service Employees Interna- tional Union, AFL-CIO, as extended by our written agreement, with respect to our employees in the following appropriate unit: All light-duty cleaners, heavy-duty cleaners. window cleaners, and watchmen employed by us at our Poughkeepsie, New York, location; excluding all guards and supervi- sors as defined in the Act. WE WILL NOT unilaterally refuse or fail to remit payment of dues to the Union and moneys to the Union's welfare and pension fund as required by the above collective-bargaining agreement. WE WILL NOT in any like or related manner fail or refuse to bargain collectively with Local 200, Service Employees International Union, AFL- CIO, as the exclusive bargaining representative of all employees in the above appropriate unit, and thereby interfere with, restrain, or coerce our employees with respect to rights protected by Section 7 of the Act. WE WILL resume the payment of dues to the Union and payments of moneys to the Union's welfare and pension fund and make restitution for payments not made in the past with interest. NATIONAL WINDOW CLEANING OF DUTCHESS, INC. 689