Superior Industries International, Inc.

834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Superior Industries International , Inc. and Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica, UAW Amalgamated Local No. 645. Case 31-CA-16587 July 14, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBER JOHANSEN AND BABSON Upon a charge filed by the Union June 11, 1987,1 the General Counsel of the National Labor Relations Board issued a complaint on July 16 against Superior Industries , the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. Although prop- erly served copies of the charge and complaint,2 the Respondent has failed to file a timely answer.3 As no timely answer was filed and no extension of time to answer was requested or granted before the due date, the General Counsel on September 21, 1987, filed a Motion for Summary Judgment with attached exhibits.4 On September 25 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response on September 30, 1987.5 On October 23, 1987, the Charging Party filed a brief in support of the Motion for Summary Judgment . Also, on October 23 the Re- 1 All dates refer to 1987, unless otherwise indicated. 8 G C. Exh 55(B), "Affidavit of Service of Complaint and Notice of Hearing," states that the complaint was served by certified mail on July 16, 1987, on the Respondent (postal receipt No. 375,938), the Respond- ent's attorney (postal receipt No. 375,939), the Charging Party (postal re- ceipt No 375,940), and the Charging Party's attorney (postal receipt No 375,941) Exh 4 of the General Counsel's "motion to reject" (mfrs fn. 7) shows photocopies of signed postal receipts , Nos. 375,938 and 375,939, for both the Respondent and the Respondent's attorney Both receipts show a date of delivery of July 17, 1987 8 On August 24, 1987, Superior Industries sent a letter to the Regional Office in answer to the complaint The letter stated that the Respondent was "without knowledge" with respect to pars 1, 3, 4, and 5 of the com- plaint; denied pars 2 and 6 through 14, opposed the remedy sought, and "affirmatively challenged, opposed, denied, and appealed" the Board's May 21, 1987 Decision and Certification of Representative 4 The Motion for Summary Judgment's certificate of service form, dated September 16, 1987, indicates that the motion was served by certi- fied mail on the Respondent's attorney (postal receipt No 375,821) and on the Charging Party's attorney (postal receipt No. 375,822) Service of the motion, by ordinary mail, was made on the Respondent, on the Charging Party, and on the Respondent's attorney (at a second address) Exh 3(B) of the General Counsel's "motion to reject," infra, shows a photocopy of the signed postal receipt (No 375,821) for the Motion for Summary Judgment, sent to the Respondent's attorney, with a date of de- livery of September 17, 1987 ° The Respondent's response is entitled "preliminary opposition to General Counsel's motion to transfer case to and continue proceedings before the Board [and motion to reconsider grant of same] and for sum- mary judgment, petition to revoke notice to show cause and/or motion to postpone due date to show cause " Refer to fn 7, infra spondent filed a second response.6 On October 26 the General Counsel filed a motion7 to reject the Respondent's first response . On November 20 the Respondent filed an errata/response with respect to its October 23 response.8 On December 7 the Gen- eral Counsel filed a response9 to the Respondent's second response and errata/response. On Decem- ber 9 the Charging Party filed a brief in support of the General Counsel's Motion for Summary Judg- ment. On December 14 the Respondent filed a motion.' ° On December 21 the Charging Party filed a response to the Respondent's December 14 motion. On January 4, 1988 , the Respondent filed a ° The Respondent's second response is entitled "Motion to Show Cause Why Summary Judgment Summary Judgment [sic] Should Not Be Granted." The response was served by ordinary mail on the Board, the Charging Party, and the Charging Party's attorney, but not on the Re- gional Office 7 The General Counsel's motion is entitled "Motion To Reject Re- spondent's Preliminary Opposition to General Counsel's Motion for Sum- mary Judgment." In its "preliminary opposition," the Respondent made three allegations why the Motion for Summary Judgment was defective . Allegation 1 maintained that the General Counsel failed to served the Motion for Summary Judgment (with exhibits) on the Respondent. In its motion to reject, the General Counsel states that the Motion for Summary Judg- ment and the exhibits were packaged together . Postal receipt No 375,821 evidences service of the motion and its exhibits. Thus, they were served by certified mail on the Respondent's attorney. Allegation 2 maintained that the complaint was not served on the Respondent 's attorney. As stated in fn. 4, supra, the complaint was served by certified mad on the Respondent's attorney and was delivered on September 17, 1987. Allega- tion 3 maintained that the General Counsel omitted documents from its exhibits to the Motion for Summary Judgment The General Counsel provided 59 exhibits (most multipart). The Respondent has made a bare assertion and has failed to indicate which documents were omitted Accordingly, we find that the Respondent's preliminary opposition is lacking in ment and we grant the General Counsel 's motion to reject 9 The Respondent's errata/response corrects the title of its October 23 second response. The corrected title reads. "Cause Why Summary Judg- ment Should Not Be Granted " This document contains 1-1/4 pages of text, a proof of service sheet (unsigned), and a corrected title page. The errata also contains the assertion that the photocopy of the postal receipt card showing receipt of the complaint by the Respondent 's attor- ney "appears to be falsified " The Respondent offers no evidence to sup- port its allegation of falsification ° The General Counsel's response is entitled "Motion To Strike Re- spondent's 'Cause Why Summary Judgment Should Not Be Granted And Corresponding Errata/Response,' or Alternately, Motion To Consider General Counsel's Within Response And Opposition Thereto " The General Counsel moves the Board to strike the Respondent's re- sponse to the Notice to Show Cause because it was defective under Sec 102 114 of the Board's Rules and Regulations The Respondent failed to serve the Regional Office with its response to the Notice to Show Cause until November 16 and the Respondent's proof of service sheet, attached to the combined "cause why" and "errata/response" documents are un- signed The General Counsel is a party in this case and should have been timely served However, in light of the fact that the General Counsel was ultimately served and has responded to the Respondent 's allegations we find that no prejudice exists See Sec 102 114(a)(2), as amended Accord- ingly, we deny the General Counsel's motion to strike 10 The motion was entitled "motion to set time for responses to Gener- al Counsel's motion to strike Respondent's cause why summary judgment should not be granted " On December 16 the Executive Secretary ex- tended the filing deadline to January 4, 1988 289 NLRB No. 106 SUPERIOR INDUSTRIES 835 response." On February 9, 1988, the Charging Party requested that the Board expedite the case.12 The National Labor Relations 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 the service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed 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." The Respondent contends that its failure to file a timely answer was excusable. The Respondent al- leges that "good cause" exists for excusing the late- ness of its answer. The alleged grounds are that the Respondent relied on the General Counsel's service sheet, which showed service of the complaint on the Respondent's attorney, and expected that its at- torney would file an answer. According to the Re- spondent, its employment supervisor was on vaca- tion during a portion of this time and on his return from vacation he allegedly was told by the Re- spondent's attorney's office that the office never re- ceived the complaint and notice of hearing and that the Respondent's attorney was on vacation. In its October 23/November 20 response to the General Counsel's Notice to Show Cause, the Re- spondent argued that the Motion for Summary Judgment should not be granted for several rea- sons: (1) the complaint was not served on the Re- spondent's attorney; (2) the Motion for Summary Judgment was not properly served on the parties; (3) good cause existed for the delayed filing of the answer; (4) the Respondent was not "specially re- minded" of the requirement to file an answer to the complaint;13 (5) the Respondent's late answer 11 The document is entitled "Response To Motion To Strike Respond- ent's 'Cause Why Summary Should Not Be Granted' And Corresponding 'Errata/Response,' Or, Alternately, Motion To Consider General Coun- sel's Within Response and Opposition Thereto." 12 The Charging Party stated that it was willing to waive any question of timeliness regarding the Respondent's October 23 submission . Timeli- ness is a procedural question and cannot be waived by a party. The Respondent filed a response to the Charging Party's motion on February 25, 1988; the response was rejected by the Executive Secretary on February 29, 1988. 13 The Respondent argues that Sec . 10280.3 of the Casehandling Manual requires the General Counsel to "specially remind" a respondent when an answer is late . Contrary to the Respondent, the Casehandling Manual contains guidance, not rules . The "Purpose of Manual" section states: This manual has been prepared by the General Counsel of the Na- tional Labor Relations Board pursuant to his authority under Section 3(d) of the Act. It is designed only to provide procedural and oper- ational guidance for the Agency's staff in administering the National raised factual issues requiring a hearing;14 (6) the Board's August 6 denial of the Respondent's "mo- tions to reconsider and reopen the record" did not address "newly discovered evidence" contained within certain motions ,to the General Counsel. We find that "good cause" does not exist for ex- cusing the late filing of the answer. We find that the Respondent's submissions do not constitute good cause within the meaning of Section 102.20 of the Board's Rules and Regulations.15 Both the Re- spondent and the Respondent's attorney were served with the complaint by certified mail, the signed postal receipts were returned to the Region- al Office, photocopies of the signed postal receipts are in the record, the Respondent has failed to offer evidence of its allegation of a falsified postal receipt, the parties, at the least, had notice of the Motion for Summary Judgment, and the Board cannot consider motions made to the General Counsel. In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, a California corporation, manu- factures cast aluminum wheels and automobile ac- cessories at its principal place of business in Van Nuys, California, where it annually sells and ships goods valued in excess of $50,000 directly to cus- tomers located outside the State of California. 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. Labor Relations Act, and it is not intended to be a compendium of substantive or procedural law, nor a substitute for a knowledge of the law. The guides are not General Counsel or Board rulings or di- rectives and are not a form of authority binding upon the General Counsel or upon the Board. We note that in Sherwood Coal Co., 252 NLRB 497 (1980), a case in which summary judgment was granted in circumstances similar to this case, there is no indication the General Counsel specially reminded the respondent to file an answer to the complaint. 14 The Respondent's late answer, which is not before us, cannot raise issues warranting a hearing. 15 See Sherwood Coal Co., supra; Jones Engineering Co., 267 NLRB 906 (1983); Hillcrest Packing Co., 247 NLRB 1389 ( 1980); Klein's Park Manor, 235 NLRB 64 (1978); Sullivan Magee & Sullivan, Inc., 229 NLRB 543 (1977). See also Lee & Sons Tree Service, 282 NLRB 905 (1987); Hoffsch- neider & Son, 250 NLRB 810 (1980); and Urban Laboratories, 249 NLRB 867 (1980). We have considered the present case in light of the "good cause" standard articulated in Sec. 102.20 of the Board's Rules and Regulations. See NLRB v. Zeno Table Co., 610 F.2d 567 (9th Cit. 1979). 836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held on August 30, 1984, the Union was certified on May 21, 1987, as the collective-bargaining representative of the employ- ees in the following appropriate unit: All production and maintenance employees, in- cluding leaderpersons, inspection employees, quality assurance technicians, shipping and re- ceiving employees, warehouse employees, bob- tail drivers, and tool and die makers, employed by the Employer at its facilities located at 7800 Woodley Avenue, 14617 Keswick Street, 14721 Keswick Street, and 14728 Raymer, Van Nuys, California 91406; excluding all other employees, electronics technicians, radiolo- gists, chemists, draftsmen, tractor trailer driv- ers (long haul), office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. The Union continues to be the exclusive repre- sentative under Section 9(a) of the Act. B. Refusal to Bargain Since June 3, 1987, and continuing to date, and more particularly by letters dated June 3, 19, and 23 and by phone calls on June 12, 16, 17, 22, and 26, the Union has requested, and is requesting, the Respondent to bargain collectively with respect to the terms and conditions of employment of the unit employees. Since June 3 the Respondent has re- fused to bargain collectively with the Union. Since June 19, 1987, the Union has requested the Respondent to furnish it with information; such in- formation is necessary and relevant to the Union's performance of its function as the exclusive collec- tive-bargaining representative of the unit employ- ees. Since June 19 the Respondent has failed and refused to provide the information requested by the Union. CONCLUSIONS OF LAW By refusing since June 3, 1987, to bargain with the Union as the exclusive representative of em- ployees in the appropriate unit and by refusing since June 19, 1987, to provide the Union with the requested information, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. REMEDY16 Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement; and to provide the Union with the requested infor- mation.17 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, Superior Industries International, Inc., Van Nuys, California, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW Amalga- mated Local No. 645 as the exclusive bargaining representative of the employees in the bargaining unit. (b) Refusing to provide the Union with requested information that is necessary and relevant to the Union's performance of its function as the exclusive bargaining representative of the employees in the bargaining unit. (c) In any like or related manner interfering 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 fol- 19 The General Counsel's request for a visitatorial provision is denied as unnecessary See Cherokee Marine Terminal, 287 NLRB 1080 (1988). 17 In its October 23, 1987 brief, the Charging Party requested litigation costs pursuant to Heck's Inc., 215 NLRB 765 ( 1974). The Charging Party also requested the Board to reconsider its decision in Ex-Cell-0 Corp, 185 NLRB 107 (1970) The Charging Party argues that the Respondent's defenses are frivolous The Charging Party's request for extraordinary remedies is denied. The Board has held that it will not award litigation expenses even where the respondent may be found to have engaged in "clearly aggravated and pervasive conduct," except in extraordinary circumstances involving fnv- olous defenses . Garland Coal & Mining Co., 276 NLRB 963 fn. 4 (1985), Tudee Products, 194 NLRB 1234 (1972) SUPERIOR INDUSTRIES lowing appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees, in- cluding leaderpersons, inspection employees, quality assurance technicians, shipping and re- ceiving employees, warehouse employees, bob- tail drivers, and tool and die makers, employed by the Employer at its facilities located at 7800 Woodley Avenue, 14617 Keswick Street, 14721 Keswick Street, and 14728 Raymer, Van Nuys, California 91406; excluding all other employees, electronics technicians, radiolo- gists, chemists, draftsmen, tractor trailer driv- ers (long haul), office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. (b) Provide the Union with requested informa- tion that is necessary and relevant to the Union's performance of its function as the exclusive bar- gaining representative of the employees in the bar- gaining unit. (c) Post at its facilities in Van Nuys, California, copies of the attached notice marked "Appen- dix." 18 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 18 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 837 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. WE WILL NOT refuse to bargain with the Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW Amalgamated Local No. 645 as the exclu- sive representative of the employees in the bargain- ing unit. WE. WILL NOT refuse to provide the Union with requested information that is necessary and rele- vant to the Union's performance of its function as the exclusive bargaining representative of the em- ployees in the bargaining unit. 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 and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All production and maintenance employees, in- cluding leaderpersons, inspection employees, quality assurance technicians, shipping and re- ceiving employees, warehouse employees, bob- tail drivers, and tool and die makers, employed by the Employer at its facilities located at 7800 Woodley Avenue, 14617 Keswick Street, 14721 Keswick Street, and 14728 Raymer, Van Nuys, California 91406; excluding all other employees, electronics technicians, radiolo- gists, chemists, draftsmen, tractor trailer driv- ers (long haul), office clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. WE WILL provide the Union with the requested information that is necessary and relevant to the Union's performance of its function as the exclusive bargaining representative of the employees in the bargaining unit. SUPERIOR INDUSTRIES INTERNATION- AL, INC.