Oakstream, Inc

OAKSTREAM INC 997 Oakstream, Inc and its alter ego J & B, Inc and Carpenters Local 248 a/w United Brotherhood of Carpenters and Joiners of America, AFL- CIO Case 8-CA-21291 May 9, 1989 DECISION AND ORDER January 12, 1989 The Respondent filed no answer and did not request another extension of time In the absence of good cause being shown for the failure to file a timely answer, 2 we grant the General Counsel's and Charging Party's Motions for Summary Judgment On the entire record, the Board makes the following BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT Upon a charge filed by the Union September 26, 1988, the General Counsel of the National Labor Relations Board issued a complaint against Oak stream, Inc and its alter ego J & B, Inc (collec Lively referred to as the Respondent), alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act Although properly served copies of the charge and complaint, the Re- spondent has failed to file an answer On January 24, 1989, the General Counsel filed a Motion for Summary Judgment On January 26, 1989, 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 entitled Motion in Op position to Motion for Summary Judgment, and the Charging Party filed a Motion to Strike Answer and Motion for Summary Judgment The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Ruling on Motions 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 filed within 14 days, "all the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board " Further, the undisputed allegations in the Motion for Summary Judgment disclose that the General Counsel, by letter dated December 21, 1988, notified the Respondent that unless an answer was received by close of business January 3, 1989, a Motion for Summary Judgment would be filed On December 30, 1988, the Respondent requested an extension of time to answer the complaint' On January 4, 1989, the Regional Director extended the time for filing an answer until close of business ' The attorney who filed the request states inter alia that the Re spondent incorrectly believed that he represented the Respondent on the instant charge and consequently needed an extension of time to secure other counsel FINDINGS OF FACT I JURISDICTION Oakstream, Inc (Oakstream), an Ohio corpora- tion, is engaged in the nonretail construction car- pentry business in Toledo, Ohio, where during the 12 months preceding the filing of the charge it pro- vided services valued in excess of $50,000 for the Whitehurst Development Corporation, which itself is engaged in commerce on a direct basis J & B, Inc (J & B), an Ohio corporation, is engaged in the nonretail construction carpentry business in Toledo, Ohio, where during the period June 3 to November 3, 1988, it provided services valued in excess of $50,000 for the Whitehurst Development Corporation, which itself is engaged in commerce on a direct basis On June 3, 1988, J & B was es- tablished by Oakstream as a subordinate entity to and a continuation of Oakstream By virtue of the acts described in the previous sentence, we find J & B and Oakstream are alter egos and a single employer within the meaning of the Act 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 Oakstream consti- tute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act All employees of Oakstream as defined by Ar- ticles II and XIX of the Articles of Agreement between the Labor Relations Division of the Associated Building Contractors of North- western Ohio, Inc and Maumee Valley Car- penters District Council Local Union Nos 2 The Respondents response states that the Respondent when previ ous counsel withdrew obtained different counsel and an answer was prepared the same day The response seems to imply that an answer was submitted The response does not however supply dates for any of these purported events and no answer is attached to the response We find that the response fails to explain why the Respondent did not file an answer before the twice extended deadline and therefore does not constitute good cause for a failure to file a timely answer Accordingly we need not pass on the Charging Party s motion to strike 293 NLRB No 124 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248, 1138, 1581 and 1393 (Millwrights & Pile- drivers) Since about February 8, 1988, the Union has been the designated exclusive collective bargaining representative of the unit and has been recognized as such by Oakstream The recognition was em- bodied in a recognition agreement dated February 8, 1988 , by which Oakstream became a party to a collective-bargaining agreement effective by its terms for the period April 1, 1987, through June 30, 1989 The Union is by virtue of Section 9(a) of the Act the exclusive representative of the unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment On March 30, 1988, the Union orally requested Oakstream to furnish the Union with wage and hour information for its unit employees concerning two grievances This information is necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining rep resentative of the unit Since about March 30, 1988, Oakstream has failed to furnish the requested infor- mation On May 6, 1988, the Union orally requested the names of all the unit employees on the College Sta- tion job and their rates of pay This information is necessary for, and relevant to, the Union's perform- ance of its function as the exclusive collective-bar- gaining representative of the unit Since about May 6, 1988, Oakstream has failed to furnish the re- quested information On May 11, 1988, the Union by letter requested Oakstream to furnish the Union with specified in- formation concerning a possible grievance 3 This information is necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining representative of the unit Since about May 11, 1988, Oakstream has failed to furnish the requested information Since about April 20, 1988, the Respondent has refused to abide by the collective-bargaining agree- ment described above, and has totally repudiated the agreement and failed and refused to recognize and bargain with the Union By the above acts, the Respondent has refused to bargain in good faith with the representative of its employees in violation of Section 8(a)(5) and (1) of the Act 8 The information requested included a list of all carpenter employees copies of payroll records and a list of any subcontractors hired by Oak stream to perform carpenter labor CONCLUSIONS OF LAW By refusing to furnish requested information that is necessary for, and relevant to, the Union's per- formance of its function as the exclusive collective- bargaining representative of unit employees, and by repudiating the collective-bargaining agreement and refusing to recognize and bargain with the Union, 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 violated Section 8(a)(5) and (1) of the Act, 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 recognize and bargain with the Union, to abide by the collective- bargaining agreement, and to furnish the Union the information it requested We shall also provide a make-whole remedy in the event unit employees suffered losses as a result of the Respondent's unfair labor practices Backpay owed shall be com- puted in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), with interest as pre scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) ORDER The National Labor Relations Board orders that the Respondent, Oakstream, Inc and its alter ego J & B Inc, Toledo, Ohio, its officers, agents, suc- cessors, and assigns, shall 1 Cease and desist from (a) Refusing to furnish Carpenters Local 248 a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO, with requested information that is necessary for, and relevant to, the Union's performance of its function as the exclusive collec tive-bargaining representative of the Respondent's employees in the following appropriate unit All employees of Respondent as defined by Articles II and XIX of the Articles of Agreement between the Labor Relations Division of the Associated Build- ing Contractors of Northwestern Ohio, Inc and Maumee Valley Carpenters District Council Local Union Nos 248, 1138, 1581 and 1393 (Millwrights & Piledrivers) (b) Repudiating the collective-bargaining agree- ment and refusing to recognize and bargain with the Union (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- OAKSTREAM INC 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, recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative of unit employees on terms and condi- tions of employment (b) Furnish the Union with the requested infor mation (c) Abide by the collective-bargaining agree- ment (d) Make whole employees for any loss of earn- ings and other benefits resulting from the failure to abide by the collective-bargaining agreement in the manner described in the remedy section of this de cision (e) 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 (f) Post at its facility in Toledo, Ohio, copies of the attached notice marked "Appendix "4 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 4 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 999 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 furnish Carpenters Local 248 a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO, with requested in- formation that is necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining representative of our employ- ees in the following appropriate unit All our employees as defined by Article II and XIX of the Articles of Agreement between the Labor Relations Division of the Associated Building Contractors of Northwestern Ohio, Inc and Maumee Valley Carpenters District Council Local Union Nos 248, 1138, 1581 and 1393 (Millwrights & Piledrivers) WE WILL NOT repudiate our collective bargain- ing agreement or refuse to recognize and bargain with the Union WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act WE WILL, on request, recognize and bargain with the Union as the exclusive collective-bargain- ing representative of our employees on terms and conditions of employment WE WILL furnish the Union with the requested information WE WILL abide by our collective-bargaining agreement WE WILL make whole employees for any loss of earnings and other benefits resulting from our fail- ure to abide by the collective-bargaining agree- ment, with interest OAKSTREAM, INC AND ITS ALTER EGO J & B, INC