S & C Excavating Co.

692 315 NLRB No. 97 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD S & C Excavating Co., Inc. and Carpenters District Council of Western Pennsylvania a/w United Brotherhood of Carpenters and Joiners of America, AFL–CIO. Case 6–CA–26571 November 30, 1994 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING Upon a charge filed by Carpenters District Council of Western Pennsylvania a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the Union) on July 25, 1994, the General Counsel of the National Labor Relations Board issued a complaint on September 8, 1994, against S & C Excavating Co., Inc. (the Respondent), alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent has failed to file an answer. On October 25, 1994, the General Counsel filed a Motion for Summary Judgment. On October 27, 1994, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. The Respondent filed no response. The allegations in the motion 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 Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 14 days of service, ‘‘all the allegations in the complaint shall be considered to be admitted to be true and shall be so found by the Board.’’ Section 102.20 also states that an answer should specifically admit, deny, or explain each of the facts alleged in the complaint unless the respondent is without knowledge, in which case it shall so state. The undisputed allegations in the Motion for Sum- mary Judgment disclose that the Regional Attorney, by letter dated September 26, 1994, notified the Respond- ent that unless an answer was received by the close of business on the third day following the Respondent’s receipt of the letter, or unless an extension of time for filing the answer was granted, a Motion for Summary Judgment would be filed. This letter was returned to the Regional Office marked ‘‘unclaimed.’’ In the in- terim, on September 23, 1994, the Regional Office re- ceived from the Respondent a handwritten note on the last page of the complaint. The note stated that the Re- spondent has retained an attorney to file a Chapter 7 bankruptcy petition. By letter dated September 28, 1994, the Respondent was advised that the handwritten note did not satisfy the obligation to file an answer in accordance with the Board’s Rules and Regulations. The Respondent received this letter, but no answer has been filed and no extension of time to file an answer has been sought. The Respondent’s handwritten note does not con- stitute a proper answer to the complaint because it does not address the facts alleged in the complaint. Furthermore, it is well established that the institution of bankruptcy proceedings does not deprive the Board of jurisdiction or authority to entertain and process an unfair labor practice case to its final disposition. Board proceedings fall within 11 U.S.C. § 362(b)(4) and (5), the exception to the automatic stay provision for pro- ceedings by a governmental unit to enforce its police or regulatory powers. Phoenix Co., 274 NLRB 995 (1985). Therefore, even if the handwritten note con- stituted an adequate answer to the complaint, the Re- spondent has raised no issues warranting a hearing. In the absence of good cause being shown for the failure to file a proper and timely answer, and in the absence of any material issues warranting a hearing, we grant the General Counsel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, an Ohio corporation with an office and place of business in Canfield, Ohio, and jobsites in Greentree and McKeesport, Pennsylvania, has been engaged in business as a contractor in the construction industry. During the 12-month period ending June 30, 1994, the Respondent, in the course and conduct of its business operations, provided services valued in excess of $50,000 in States other than the State of Ohio. 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 the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Unit and the Union’s Representative Status The employees of the Respondent performing the work described in article V of the collective-bargaining agreements described below constitute a unit appro- priate for collective-bargaining purposes within the meaning of Section 9(b) of the Act. About May 23, 1994, the Respondent, an employer engaged in the building and construction industry, oral- ly extended recognition to the Union as the exclusive 693 S & C EXCAVATING CO. collective-bargaining representative of the unit employ- ees, and about May 23, 1994, orally entered into a col- lective-bargaining agreement effective by its terms for the period June 1, 1990, to May 31, 1994, which agreement was executed by the Respondent on June 8, 1994. Since about May 23, 1994, pursuant to the col- lective-bargaining agreement described above, the Union has been recognized as the exclusive collective- bargaining representative of the unit by the Respond- ent, without regard to whether the majority status of the Union had ever been established under the provi- sions of Section 9(a) of the Act. Recognition has been embodied in successive collective-bargaining agree- ments executed by the Respondent, the most recent of which is effective for the period from June 1, 1994, to May 31, 1998. For the period from May 23, 1994, to May 31, 1998, the Union, based on Section 9(a) of the Act, has been, and is, the limited exclusive collective- bargaining representative of the employees in the unit. B. The Refusal to Bargain Article VI of the collective-bargaining agreements described above provides for the payment of fringe benefits to pension, medical and annuity and savings funds for the benefit of the unit. Since about May 24, 1994, the Respondent has failed to continue in effect all the terms and conditions of the agreements de- scribed above by failing to pay fringe benefits to the funds as required by article VI of the collective-bar- gaining agreements. Article IV of the collective-bargaining agreements described above provides for the payment of wages to unit employees. Since about June 28, 1994, the Re- spondent has failed to continue in effect all the terms and conditions of the agreements described above by failing to pay wages as required by article IV of the collective-bargaining agreements. The Respondent engaged in this conduct without the Union’s consent. The terms and conditions of employ- ment described above are mandatory subjects for the purpose of collective bargaining. By this conduct, the Respondent has been failing and refusing to bargain collectively and in good faith with the limited exclu- sive collective-bargaining representative of its unit em- ployees, and has thereby been engaging in unfair labor practices within the meaning of Section 8(d) and Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing to pay fringe benefits to the pension, medical and annuity and savings funds, and by failing to pay wages, as required by the collective-bargaining agreements, the Respondent has 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. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by failing to make contractually required contributions to the pension, medical and annuity and savings funds, we shall order the Respondent to make whole its unit employees by making all such delinquent contributions, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addition, the Respondent shall reimburse unit employees for any expenses ensuing from its fail- ure to make the required contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) by failing to pay unit employees contractual wages, we shall order the Respondent to make the unit employees whole for any loss of earn- ings attributable to its unlawful conduct. Backpay shall be computed in accordance with Ogle Protection Serv- ice, supra, with interest as prescribed in New Horizons for the Retarded, supra. In light of the Respondent’s representations in its handwritten note that the Respondent may have filed a bankruptcy petition, we shall also provide for mail notices to employees. ORDER The National Labor Relations Board orders that the Respondent, S & C Excavating Co. Inc., Canfield, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Union as the lim- ited exclusive collective-bargaining representative of the unit employees by failing to make required con- tributions to the pension, medical and annuity and sav- ings funds, and by failing to pay contractually required wages to unit employees. (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) Remit the delinquent contributions to the pen- sion, medical and annuity and savings funds, including any additional amounts due the funds, and reimburse the unit employees for any expenses ensuing from the 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 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.’’ Respondent’s failure to make the required payments, in the manner set forth in the remedy section of the deci- sion. (b) Make all contractually required wage payments, in the manner set forth in the remedy section of the decision. (c) On request, bargain with Carpenters District Council of Western Pennsylvania a/w United Brother- hood of Carpenters and Joiners of America, AFL–CIO as the limited exclusive collective-bargaining rep- resentative of the employees performing the work de- scribed in article V of the collective-bargaining agree- ments. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facility in Canfield, Ohio, and mail to the Union and to all unit employees, copies of the at- tached notice marked ‘‘Appendix.’’1 Copies of the no- tice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive 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. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 refuse to bargain with the Union as the limited exclusive collective-bargaining representa- tive of our unit employees by failing to make required contributions to the pension, medical and annuity and savings funds, and by failing to pay contractually re- quired wages to unit employees. 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 remit the delinquent pension, medical and annuity and savings fund contributions, including any additional amounts due the funds, and WE WILL reim- burse the unit employees for any expenses ensuing from our failure to make the required payments, with interest. WE WILL make all contractually required wage pay- ments, with interest. WE WILL, on request, bargain with Carpenters Dis- trict Council of Western Pennsylvania a/w United Brotherhood of Carpenters and Joiners of America, AFL–CIO as the limited exclusive collective-bargain- ing representative of the employees performing the work described in article V of our collective-bargain- ing agreements. S & C EXCAVATING CO., INC.