Empresas Inabon

1 325 NLRB No. 30 1 309 NLRB 291. NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. Empresas Inabon, Inc., Division of Ready Mix and Aggregates and Congreso de Uniones Industriales de Puerto Rico. Case 24–CA–7555 December 31, 1997 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Upon a charge filed by the Union on October 31, 1996, the General Counsel of the National Labor Rela- tions Board issued a complaint on January 31, 1997, against Empresas Inabon, Inc., Division of Ready Mix and Aggregates, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. Although the Respondent filed an an- swer to the complaint, it withdrew that answer on Oc- tober 29, 1997. On November 28, 1997, the General Counsel filed a Motion for Summary Judgment with the Board. On December 4, 1997, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, un- less good cause is shown. In addition, the complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Here, although the Re- spondent initially did file an answer, the Respondent withdrew its answer to the complaint on October 29, 1997. The Respondent’s withdrawal of its answer to the complaint has the same effect as a failure to file an answer, i.e., all allegations in the complaint must be considered to be true. See Maislin Transport, 274 NLRB 529 (1985). Accordingly, in the absence of good cause being shown otherwise, we grant the General Counsel’s Mo- tion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Puerto Rico corporation, with an office and place of business in Barrio Cotto Laurel, Ponce, Puerto Rico, has been en- gaged in the processing and sale of ready mix and ag- gregate products in Puerto Rico. During the 12-month period preceding issuance of the complaint, the Re- spondent, in conducting its business operations, de- rived gross revenues in excess of $50,000 and pur- chased and received at its Cotto Laurel plant goods valued in excess of $50,000 directly from points out- side Puerto Rico. Since about August 6, 1996, the Re- spondent has been a debtor-in-possession with full au- thority to continue its operations and to exercise all powers necessary to administer its business. We find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the employer at its Ready Mix plant in Barrio Cotto Laurel, Ponce, Puerto Rico, includ- ing truck drivers, mechanics, helpers, greasers and laborers; but excluding all office clerical employ- ees, salesmen, dispatchers and supervisors as de- fined in the Act. On October 22, 1993, in Case 24–CA–6336,1 the Union was certified as the exclusive collective-bargain- ing representative of the unit by the Board, and, at all times since that date, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. About June 6, 1996, the Union orally requested that the Respondent bargain collectively with the Union as the exclusive collective- bargaining representative. About the same date the Re- spondent withdrew recognition from the Union as the exclusive collective-bargaining representative of the unit and since that date has failed and refused to rec- ognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. CONCLUSION OF LAW By the acts and conduct described above, the Re- spondent has been failing and refusing to bargain col- 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 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.’’ lectively and in good faith with the exclusive collec- tive-bargaining representative of its employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Specifi- cally, having found that the Respondent has withdrawn recognition from the Union and has failed and refused to recognize and bargain with the Union as the exclu- sive collective-bargaining representative of the unit, we shall order the Respondent do so on request. ORDER The National Labor Relations Board orders that the Respondent, Empresas Inabon, Inc., Division of Ready Mix and Aggregates, Barrio Cotto Laurel, Ponce, Puer- to Rico, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition from Congreso de Uniones Industriales de Puerto Rico or failing or refus- ing to recognize or bargain with the Union as the ex- clusive collective-bargaining representative of the fol- lowing unit: All production and maintenance employees em- ployed by the employer at its Ready Mix plant in Barrio Cotto Laurel, Ponce, Puerto Rico, includ- ing truck drivers, mechanics, helpers, greasers and laborers; but excluding all office clerical employ- ees, salesmen, dispatchers and supervisors as de- fined in the Act. (b) In any like or related manner interfering with, restraining, 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) Recognize and, on request, bargain with the Union as the exclusive collective-bargaining represent- ative of the unit on terms and conditions of employ- ment and, if an understanding is reached, embody the understanding in a signed agreement. (b) Within 14 days after service by the Region, post at its facility in Barrio Cotto Laurel, Ponce, Puerto Rico, copies of the attached notice marked ‘‘Appen- dix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 24, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, 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 duplicate 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 June 6, 1996. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 31, 1997 llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll Wilma B. Liebman, Member llllllllllllllllll Peter J. Hurtgen, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT withdraw recognition from Congreso de Uniones Industriales de Puerto Rico or fail or refuse to recognize or bargain with it as the exclusive collec- tive-bargaining representative of the following unit: All production and maintenance employees em- ployed by us at our Ready Mix plant in Barrio Cotto Laurel, Ponce, Puerto Rico, including truck drivers, mechanics, helpers, greasers and laborers; but excluding all office clerical employees, sales- men, dispatchers and supervisors as defined in the Act. 3 EMPRESAS INABON, INC. 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 recognize and, on request, bargain with the Union as the exclusive collective-bargaining represent- ative of the unit on terms and conditions of employ- ment and, if an understanding is reached, embody the understanding in a signed agreement. EMPRESAS INABON, INC., DIVISION OF READY MIX AND AGGREGATES