R. L. Broker & Co., Inc.

R L BROKER & CO R. L. Broker & Company, Inc. and United Union of Roofers, Waterproofers and Allied Workers Local No. 20D, AFL-CIO. Case 17-CA-11442 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Union on 26 January 1983, the General Counsel of the National Labor Relations Board issued a complaint 11 March 1983 against the Company, the Respondent , alleging that it has violated Section 8(a)(1) and (5) and Section 8(d) of the National Labor Relations Act. Al- though properly served copies of the charge and complaint, the Company has failed to file an answer. On 18 May 1983 the General Counsel filed a Motion for Summary Judgment . On 25 May 1983 the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted . The Company filed no response. The allegations in the motion are therefore undisputed. Ruling on Motion for Summary Judgment Notwithstanding the absence of good cause shown for the failure to file a timely answer herein, we decline to grant the General Counsel's Motion for Summary Judgment as set forth below. Alleged Unfair Labor Practices The complaint alleges in pertinent part that: (a) About mid-September 1982 the Respondent and the Union reached full agreement on a collec- tive-bargaining contract covering employees in an appropriate unit and about 15 September 1982 exe- cuted said agreement. (b) Around mid-September 1982 the Respondent and the Union reached agreement on a supplemen- tary collective-bargaining agreement and executed said agreement. (c) Since about 15 September 1982 the Respond- ent has refused to adhere to the collective-bargain- ing agreement described above in paragraph (a). (d) Since about 20 September 1982 the Respond- ent has failed and refused to adhere to the collec- tive-bargaining agreements described above in paragraphs (a) and (b). (e) Since about 1 December 1982 the Respondent has subcontracted all bargaining unit work without notifying the Union or having afforded it an oppor- tunity to negotiate and bargain with respect to such conduct and its effects. 709 The complaint further alleges that by the acts and conduct described in the above paragraphs "and by each of said acts," the Respondent has interfered with, restrained, and coerced employees and failed and refused to bargain collectively and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) and Section 8(d) of the Act. We note initially that the complaint is internally inconsistent in that it alleges that the Respondent violated the Act both by reaching the agreements with the Union and by refusing to adhere to those agreements. Further, the complaint fails to estab- lish, by allegations or statements of fact, informa- tion necessary to determine whether the Respond- ent violated Section 8(a)(1) and (5) and Section 8(d) of the Act. Absent from the complaint are al- legations or statements of facts which demonstrate that the asserted contract between the Respondent and the Union was in effect on 1 December 1982; allegations that if such contract was in effect, it contained a proscription against subcontracting, and which describes its lawfulness under Section 8(e)'s proviso; or which enables us to determine whether the decision to subcontract in fact re- quired bargaining. i Accordingly, we conclude that even in the, ab- sence of an answer, it would be inappropriate to grant the Motion for Summary Judgment. Because the allegations in question constitute a substantial portion of the complaint, we shall remand the entire proceeding to the Regional Director for ap- propriate action. ORDER It is ordered that the General Counsel's Motion for Summary Judgment is denied IT IS FURTHER ORDERED that the above-entitled proceeding is remanded to the Regional Director for Region 17 for appropriate action. MEMBER DENNIS, dissenting. I would grant the General Counsel's Motion for Summary Judgim nt in this uncontested case. Sec- tion 102.20 of the Board's Rules and Regulations provides that, if no answer is filed, all allegations of the complaint shall be deemed to be admitted. The purpose of this section is obvious: to avoid the expenditure of agency time and funds in conduct- ing a hearing on a charge that the Respondent has indicated it has no interest in defending. The ma- jority decision today subverts the purpose of Sec- tion 102.20, causing unnecessary cost and delay. ' See Otis Elevator Co, 269 NLRB 891, 893 (1984), Stine Scovil Con- struction Co, 269 NLRB 465 (1984) 274 NLRB No. 101 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My, colleagues refuse to grant summary judg- ment because they think the allegations of the com- plaint fail to establish such necessary information as whether the contract executed 15 September 1982 was in effect less than 3 months later on 1 Decem- ber 1982 when the Respondent subcontracted all bargaining unit work; whether the contract specifi- cally proscribed subcontracting; whether the sub- contracting proscription, if any, was lawful under Section 8(e); and whether the decision to subcon- tract required bargaining under Otis Elevator Co., 269 NLRB 891 (1984). I do not find the complaint deficient in any of these matters. The central fact of this case is that the Respondent admits all complaint allegations. It admits that the Union is the exclusive representa- tive of its employees in an appropriate unit; it exe- cuted a collective-bargaining agreement and a sup- plementary agreement in mid-September 1982; it refused to adhere to these agreements; on 1 De- cember 1982 it subcontracted all bargaining unit work without notifying the Union or bargaining with it over the subcontracting and its effects; and finally, that by all of these acts, it violated Section 8(a)(1) and (5) and Section 8(d) of the Act. Given the Respondent's admission that it com- mitted unfair labor practices, the Board's sole re- sponsibility is to determine whether the complaint allegations support a cause of action. Had the com- plaint, for example, failed to allege that the Union was the exclusive bargaining representative of the Respondent's employees in an appropriate unit, a critical element for finding an 8(a)(5) violation would be missing from the complaint. There are, however, no such fatal omissions in the instant complaint. All of the problems my colleagues raise are po- tential defenses that the Respondent could have pressed, had it troubled itself to challenge the com- plaint allegations. Where a respondent chooses to remain silent after repeated warnings that its si- lence will result in finding an admission of all alle- gations in a proper complaint, the Board should not mount the respondent's defense for it and allow it to avoid a summary finding of unlawful conduct. My colleagues err in providing defenses for a re- spondent who has amply shown it does not wish to be bothered with raising its own.