Jones Pallet Recycle & Mfg., Inc.

JONES PALLET RECYCLE & MFG. 279 Jones Pallet Recycle & Mfg., Inc. and Production Workers Union of Chicago & Vicinity, Local 707, an affiliate of National Production Work- ers Union. Cases 13-CA-27126 and 13-CA- 27136 March 31, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON Upon charges filed by the Union on August 13 and 19, 1987, 1 the General Counsel of the National Labor Relations Board issued a consolidated com- plaint against Jones Pallet Recycle & Mfg., Inc., the Respondent, alleging that it has violated Sec- tion 8(a)(1), (3), and (5) of the National Relations Act. Although properly served copies of the charges and complaint, the Respondent has failed to file an answer. On October 22 the General Counsel filed a Motion for Summary Judgment. On October 26 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On November 18 the Respondent's counsel filed a response in which she requested an extension of time to reply to the Motion for Summary Judgment. On November 20 the General Counsel filed an opposition to the re- sponse. The National Labor Relaiions Board has delegat- ed 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 Regula- tions 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 tiled within 14, days of service "all of the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." Further, the undisputed alle- gations in the Motion for Summary Judgment dis- close that Supervisory Attorney Howard Malkin for Region 13, by certified letter dated September 16, notified the Respondent's counsel that the Re- spondent had 14 days from service of the consoli- dated complaint to file an answer. On October 5 Malkin, again by certified letter, notified the Re- spondent's counsel that unless an answer was re- ceived no later than October 13 a Motion for Sum- 1 All dates are in 1987 unless indicat.d otherwise. mary Judgment would be filed. No answer has been filed. In her response, counsel for the Respondent has not explained why the Respondent failed to file a timely [answer or why it still has filed no answer to the complaint. Instead, counsel has seen fit only to request an extension of time to reply to the Motion for Summary Judgment. Counsel supports that re- quest by contending, inter alia, that the Respondent did not receive copies of the motion and only became aware of it upon receipt of the "Order transferring said cause," and that counsel's "office address was changed and mail is now delayed in being" forwarded to her. We deny the request as lacking in merit. We further find that the request cannot also serve as good cause shown for the Re- spondent's failure to file an answer. The contention that the request should be grant- ed because of the Respondent's untimely receipt of the motion is refuted by documentary evidence at- tached to the General Counsel's opposition to the request. That evidence establishes that the Re- spondent, by certified mail, received a copy of the Motion for Summary Judgment on October 21, 1987. We find, therefore, that service of the motion on the Respondent was both timely and effective and that, consequently, knowledge of the motion should be imputed to the Respondent's counsel as well. Similarly, the contention that counsel's change in address caused receipt of the motion to be delayed is refuted by the evidence. The General Counsel's opposition shows that the motion was sent by certified mail and forwarded to the Re- spondent's counsel's current office address, but was unclaimed. Failure to claim certified mail does not thwart service of process and thereby defeat the purpose of the Act. Pasco Packing Co., 115 NLRB 437 (1956); see also Michigan Expediting Service, 282 NLRB 210, 211 fn. 6 (1986). Thus, there is no basis for granting the requested extension of time on either of these asserted grounds.2 With respect to the Respondent's counsel's re- quest serving as an explanation for the Respond- ent's failure to file an answer, we find that it does not suffice to show good cause. The purported lack of timely receipt of the Motion for Summary Judg- ment has no relevance to the Respondent's failure 2 Another reason given m support of the requested extension of time to reply to the Motion for Summary Judgment is that the Respondent was preparing for trial of the instant matter, which before the motion was filed was set for hearing on November 18, 1987 We fad to see how prep- aration for trial of the very case in which default judgment has been moved against it could have interfered with or impeded the Respond- ent's readiness to respond To the contrary, trial preparation of the matter for which summary judgment is sought should precipitate the ex- peditious drafting of a response, rather than delay or hinder its prepara- tion, if a respondent seriously is interested in forestalling the entry of such judgment against it. 288 NLRB No. 35 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to file an answer to the complaint, which was timely and properly served on the Respondent. The alleged delay in receiving the motion cannot forgive or negate the Respondent's failure to comply with the requirements of Section 102.20 of the Rules and Regulations for the filing of an answer—requirements that the undisputed allega- tions of the motion demonstrate were brought to the Respondent's attention by Supervisory Attor- ney Malkin of Region 13 before summary judg- ment was sought. Finally, treating the Respond- ent's trial preparation assertion as a further ground for its failure to file an answer, we dismiss it as bordering on the frivolous. The Respondent could not reasonably prepare this case for trial without drafting and submitting an answer to join issue with the allegations of the complaint. In any event, we find this ground fails to excuse the Respond- ent's failure to file an answer for reasons similar to those expressed by us in footnote 2, supra, for re- jecting it as an asserted ground in support of coun- sel's request for an extension of time to reply to the Motion for Summary Judgment. In the absence of good cause being shown for the failure to file an answer, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, an Illinois corporation, is en- gaged in the repair and manufacture of pallets at its facility in Chicago, Illinois, where it annually pur- chases and receives at its facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Illinois. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organi- zation 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 collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and maintenance employees and drivers em- ployed by the Employer at its facility present- ly located at 348 West 47th Street, Chicago, Illinois; excluding all clerical employees, all temporary employees, guards and supervisors as defined in the Act. Since being certified by the Board on June 8, 1987, the Union has been the designated exclusive collective-bargaining representative of the employ- ees in the unit described above under Section 9(a) of the Act. The allegations of the complaint show that on May 15, 1987, the Respondent's president, Johnny Jones Jr., threatened his employees with layoffs if they continued to support the Union. On the same date, the Respondent's bookkeeper, Sarah Jones,3 threatened employees by stating that the Respond- ent would go out of business if the employees se- lected the Union as their collective-bargaining rep- resentative. About the end of April or the beginning of May 1987, the Respondent implemented a no-solicitation rule in order to discourage its employees from sup- porting, joining, or assisting the Union or engaging in other protected concerted activities. Thereafter, on May 29, the Respondent reduced the overtime work hours of employee Sammie Lee Pate, and on July 24 and August 10, respectively, the Respond- ent laid off employees Ronald Johnson and Sammie Lee Pate because of their activities on behalf of the Union and other protected concerted activities, and in order to discourage its other employees from supporting the Union or engaging in other protect- ed concerted activities. Beginning June 8 and continuing on various dates in July and August 1987, the Union's presi- dent, Frank Stroud, requested the Respondent to bargain collectively. Since about June 8 and con- tinuing to date, the Respondent has not only failed and refused to bargain but has refused to agree to meet at a reasonable time, has refused to designate a bargaining representative, and has generally en- gaged in dilatory tactics which have hindered the establishment of any collective-bargaining sessions. On June 18, 1987, and continuing to date, the Union has requested that the Respondent furnish it with information regarding the certified unit em- ployees' rates of pay including their incentive rates, number of holidays, and health benefits. Since the June request, the Respondent has refused and con- tinues to refuse to supply the Union with the re- quested relevant and necessary information. We find that by engaging in the conduct de- scribed above the Respondent has violated Section 8(a)(1), (3), and (5) of the Act as alleged. CONCLUSIONS OF LAW 1. By threatening employees with layoff and plant closing and by implementing a no-solicitation 'Alleged in the complamt as a supervisor and agent of the Respondent within the meaning of Sec. 2(11) and (13) of the Act, respectively. JONES PALLET RECYCLE & MFG. 281 rule in order to discourage its employees from sup- porting, joining, or assisting the Union or engaging in other concerted activities, the Respondent has engaged in unfair labor practices within the mean- ing of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By reducing the overtime work hours and by laying off its employees because of their activities on behalf of the Union and other protected con- certed activities, the Respondent has violated Sec- tion 8(a)(3) and (1) of the Act. 3. By failing and refusing to bargain with the employees' certified collective-bargaining repre- sentative, by engaging in dilatory tactics pursuant thereto including refusing to meet at a reasonable time and to designate a bargaining representative, and by refusing to provide the Union with request- ed relevant and necessary bargaining unit informa- tion, the Respondent has violated Section 8(a)(5) and (1) 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 designed to effectuate the policies of the Act. We shall order the Respondent to offer Ronald Johnson and Sammie Lee Pate immediate and full reinstatement to their former positions or, if such positions have been abolished or changed in the Respondent's operations, to any substantially simi- lar positions, without prejudice to any rights and privileges that they may have, and that the Re- spondent make them whole for any loss of earnings and other benefits that they may have suffered by reason of the discrimination practiced against them by payment to each of them a sum equal to that which he would have normally earned in pay and benefits, in the case of Pate from May 29, 1987, when the Respondent reduced his overtime work hours, and in the case of both of them from July 24 and August 10, 1987, respectively, the dates of Johnson's and Pate's respective layoffs, until the Respondent offers them reinstatement, less any net earnings for the interim period. Backpay is to be computed on a quarterly basis as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),4 plus interest as prescribed in New Horizons for the Re- tarded. 5 Also, we shall order the Respondent to 4 Backpay for the reduction of Pate's overtime hours for the period from May 29 to August 10, 1987, shall, however, be computed in the manner prescribed m Ogle Protection Service, 183 NLRB 682, 683 (1970) 5 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C. § 6621. Interest on notify the employees named above that it has re- moved from its files any references to their layoffs and that their layoffs will not be used against them in any way. We shall also order the Respondent, on request of the Union, to bargain in good faith with the Union and if an agreement is reached to embody such agreement in a signed collective-bargaining agreement. We shall also order the Respondent to furnish the Union information regarding the rates of pay, incentive rates, number of holidays, and health ben- efits of the employees in the bargaining unit. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar HOtel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Jones Pallet Recycle & Mfg., Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with layoff and clos- ing of its business because of their union sympa- thies or activities. (b) Implementing, maintaining, giving effect to, or enforcing a no-solicitation rule in order to dis- courage employees from joining, supporting, or as- sisting the Union and from engaging in concerted activities for the purposes of collective bargaining or other mutual aid and protection. (c) Reducing the availability and assignment of overtime work hours of employees because of their union sympathies or activities on behalf of a union or other protected concerted activities. (d) Laying off, discharging, or otherwise dis- criminating against employees because of their union sympathies or activities or other protected concerted activities, or because they selected the Union, Production Workers Union of Chicago & Vicinity, Local 707, an affiliate of National Pro- duction Workers Union, as their collective-bargain- ing representative. amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (e) Refusing to recognize and bargain collective- ly in good faith with the Union as the exclusive bargaining representative concerning wages, hours, and conditions of employment of the employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees and drivers em- ployed by the Employer at its facility present- ly located at 348 West 47th Street, Chicago, Illinois; excluding all clerical employees, all temporary employees, guards and supervisors and defined in the Act. (f) Refusing to furnish the Union relevant and necessary bargaining information concerning the employees in the above-described appropriate unit including but not limited to the employees' rates of pay, incentive rates, holidays, and health benefits. (g) In any like or related manner interefering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the ap- propriate unit concerning rates of pay, wages, hours, and other terms and conditions of employ- ment and, if an understanding is reached, embody the understanding in a signed agreement. (b) On request, furnish to the Union all relevant and necessary bargaining unit information concern- ing the employees in the appropriate unit including but not limited to the employees' rates of pay, in- centive rates, holidays, and health benefits. (c) Make restitution to employee Sammie Lee Pate for any wages or other benefits which may have been lost by him by virtue of the Respond- ent's unlawful reduction of his overtime work hours, in the manner set forth in the remedy sec- tion of this Decision and Order. (d) Offer Ronald Johnson and Sammie Lee Pate immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this Decision and Order. (e) Remove from its files any reference to the unlawful layoffs and notify the employees in writ- ing that this has been done and that the layoffs will not be used against them in any way. (f) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, 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. (g) Post at its facility in Chicago, Illinois, copies of the attached notice marked "Appendix "6 Copies of the notice, on forms provided by the Re- gional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 6 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 Nation- al 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten our employees with layoff or plant closing because of their union sym- pathies or activities. WE WILL NOT implement, maintain, give effect to, or enforce a no-solicitation rule in order to dis- courage our employees from joining, supporting, or assisting the Union and from engaging in concerted activities for the purposes of collective bargaining or other mutal aid and protection. JONES PALLET RECYCLE & MFG. 283 'WE WILL NOT reduce the availability of overtime work hours of our employees in retaliation for their union sympathies or activities or other pro- tected concerted activities. WE WILL NOT lay off, discharge, or otherwise discriminate against our employees because of their union sympathies or activities or other protected concerted activities, or because they selected the Union, Production Workers Union of Chicago Vicinity, Local 707, an affiliate of the National Production Workers Union, as their collective-bar- gaining representatives. WE WILL NOT refuse to recognize and bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with the Union as the exclusive representative of our employees in the bargaining unit described below. WE WILL NOT refuse to furnish the Union rele- vant and necessary bargaining information concern- ing our employees in the bargaining unit described below including but not limited to the employees' rates of pay, incentive rates, holidays, and health benefits. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement, and WE WILL, on request, furnish the Union with relevant and necessary bargaining in- formation concerning the employees in the bargain- ing unit below including but not limited to the em- ployees' rates of pay, incentive rates, number of holidays, and health benefits. The bargaining unit is: All full-time and regular part-time production and maintenance employees and drivers em- ployed by the Employer at its facility present- ly located at 348 West 47th Street, Chicago, Illinois; excluding all clerical employees, all temporary employees, guards and supervisors and defined in the Act. WE WILL offer Sammie Lee Pate and Ronald Johnson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed. WE WILL make whole, with interest, Sammie Lee Pate and Ronald Johnson for any loss of earn- ings or other benefits resulting from Pate's reduc- tion of overtime work and Pate's and Johnson's layoffs, and WE WILL notify each of them that we have removed from our files any reference to their layoffs and that the layoffs will not be used against them in any way. JONES PALLET RECYCLE & MFG., INC.