Electric Co.

SECO ELECTRIC CO Seco Electric Company and Donald Tutorow. Case 9-CA-20820 7 March 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by Donald Tutorow 11 April 1984,1 the Acting General Counsel of the National Labor Relations Board issued a complaint 27 July against Seco Electric Company, the Re- spondent, alleging that it has violated Section 8(a)(1) of the National Labor Relations Act, by constructively discharging the Charging Party on 23 March. On 10 August the Respondent filed an answer admitting certain allegations, but denying other al- legations of the complaint, including the commis- sion of any unfair labor practices. As an affirmative defense the Respondent alleges that the Charging Party was terminated for refusing to report for work. On 29 August the Acting General Counsel filed an amended complaint alleging the Respondent's violation of Section 8(a)(1) by deciding to transfer the Charging Party on 23 March and by construc- tively discharging him on 26 March. Although properly served with a copy of the amended com- plaint the Respondent has failed to file an answer.2 On 5 November the General Counsel filed a Motion for Summary Judgment and a memoran- dum in support thereof. On 7 November the Board issued an order transferring the proceeding to the Board and Notice to Show Cause why the motion should not be granted. The Respondent filed no re- sponse. The allegations in the motion are therefore undisputed. Ruling on the Motion for Summary Judgment In his Motion for Summary Judgment counsel for the General Counsel avers that the Respondent has failed to file an answer to the amended com- plaint and that under Section 102.20 of the Nation- al Labor Relations Board's Rules and Regulations i All dates are 1984 unless otherwise noted 2 On 10 September counsel for the General Counsel sent a telegram and a letter to the Respondent's controller, who had filed the answer to the complaint, to confirm a phone conversation of that same date with the Respondent's attorney during which the counsel for the General Counsel informed the attorney that if no answer were received by the close of business 12 September (the hearing was set for 13 September) counsel for the General Counsel would move for summary judgment On 29 October the Respondent's attorney sent a letter to counsel for the General Counsel stating that' the Respondent did not intend to file an answer to the amended complaint and that the General Counsel might, "therefore, per our discussion, proceed to formerly [sic] file your motion for Summary Judgment based upon the pleadings contained in amended complaint " 755 the Board should find the allegations of the com- plaint to be true and should issue an order based on such findings. We shall deny this motion for the following reasons. In the complaint and the amended complaint, the Acting General Counsel has alleged that the Charging Party has engaged in "concerted activi- ties for the purpose of collective bargaining and other mutual aid or protection, i.e., his making complaints to the Ohio Department of Industrial Relations regarding Respondent's alleged failure to pay prevailing wage rates to its employees and its alleged failure to pay appropriate sums of monies to the Profit Sharing Trust on their behalf." (Em- phasis added.) In Meyers Industries, 268 NLRB 493 (1984), which was published before the initial com- plaint issued in this case, the Board held that for activity to be concerted it must "be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee him- self." Meyers, supra at 497. Here, the complaint, by its use of the singular pronoun "his," limits the complaints made to a state agency to individual action. Even assuming that all allegations in the amended complaint are admitted in order to find the violations as alleged, we would have to either ignore the plain language of the complaint or engage in speculation as to the Charging Party's activity. 3 For the reasons set forth above we find that sub- stantial and material issues of fact and law are raised by the complaint which are not susceptible to conclusive findings in this proceeding. Accordingly, we shall deny the motion. ORDER The General Counsel's Motion for Summary Judgment is denied. IT IS FURTHER ORDERED that this proceeding be remanded to the Regional Director for Region 9 for further appropriate action. MEMBER DENNIS, concurring in the result. The majority decision amounts to nothing more than an advisory opinion on the applicability of Meyers Industries, 268 NLRB 493 (1984). It is en- tirely unnecessary to reach the question whether the allegations of the amended complaint support a cause of action. The General Counsel's Motion for Summary Judgment should be denied instead on the ground that under Board precedent the Re- spondent's answer to the original complaint, deny- ing the commission of any unfair labor practices, a We agree with Member Dennis that Marko Contractors, 269 NLRB 990 (1984), is further grounds for denying the General Counsel 's Motion for Summary Judgment 274 NLRB No. 106 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD raises litigable issues not appropriate for resolution in a summary judgment proceeding.' ' Marko Contractors, 269 NLRB 990 (1984) The instant case is virtual- ly identical to Marko in that the only substantive difference between the amended complaint and the original complaint is the addition of an 8(a)(1) allegation