Mcintyre Engineering Co , Inc

716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD McIntyre Engineering Co , Inc and Sheet Metal Workers Local Union' 335, Sheet Metal Work- ers International Union, AFL-CIO Case 20- CA-22192 April 19, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY Upon a charge filed by the Sheet Metal Workers Local Union 335, Sheet Metal Workers Interna- tional Union, AFL-CIO (the Union) September 9, 1988,1 the General Counsel of the National Labor Relations Board issued a complaint October 24 against Mclntrye Engineering Co, Inc (the Re spondent), alleging that the Respondent has violat- ed Section 8(a)(5) and (1) and Section 8(d) of the National Labor Relations Act by refusing to comply with a written request of the Union to dis- charge employees who had failed or refused to comply with the union-security clause in the par ties' collective bargaining agreement Although properly served copies of the charge and com- plaint, the Respondent has failed to file an answer On November 25, the General Counsel filed a Motion for Summary Judgment, with exhibits at tached The Union later joined that motion On December 2, 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 no response However, on De- cember 2, the General Counsel filed a letter with attachments to the Board In the letter the General Counsel indicates that subsequent to her Motion for Summary Judgment, the Respondent submitted a letter to the Region in response to the complaint The General Counsel argues that the Respondent's letter, which is attached to her letter, is untimely, fails as a valid answer to the complaint because it "fails to specifically deny or explain any of the facts alleged in the Complaint", and, to the extent that it is viewed as an "explanation," it effectively admits the key facts establishing the unfair labor practice The General Counsel therefore urges that summary judgment is still appropriate The Re spondent filed no response to the General Coun sel's letter The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel ' All dates are 1988 unless otherwise noted 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 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" Section 102 20 also states that an answer should specifically admit, deny, or explain each of the facts alleged in the complaint unless the respondent is without knowl edge in which case it shall so state The Respondent did not initially file an answer to the complaint as required by Section 102 20 of the Board's Rules and Regulations According to the undisputed allegations in the Motion for Sum mary Judgment, by letter dated November 14, the acting regional attorney then notified the Respond- ent that unless an answer was received by the Region by November 21, the General Counsel would seek summary judgment No answer was re ceived by the Region by that date and accordingly the General Counsel sought summary judgment As noted above, on November 28, the Region then received a letter from the Respondent, dated No vember 21 The seven-paragraph letter stated, inter alia, that the Respondent did "not understand the requirement for further statements prior to the hearing An affidavit was taken by Mr Jack Marks on October 19, 1988 which I believed was our proper response In addition, there has been no ex planation of our options, possible penalties, etc which I feel we are entitled to " It then elaborated on the Respondents financial difficulties and ex- plained, inter alia that a number of employees had refused to pay dues to the Union because the Union Trust Fund had terminated their health ben efits in response to the Respondent's financial in- ability to stay current on its payments to the Fund The Respondent stated that it was "caught in the position of terminating a high percentage of critical skilled personnel and not being able to continue production, or allowing them to work until an overall settlement can be made with the Union and the Trust Fund " It then indicated that ' [t]his is the basis for the complaint Our financial picture has not improved sufficiently that we can pay all of the delinquent Trust Fund Health & Welfare payments which would reinstate the plan " It proposed "that some form of compromise be reached " We agree with the General Counsel that the Re- spondent's November 21 letter does not constitute a proper answer under the Board's Rules We first 293 NLRB No 87 MCINTYRE ENGINEERING CO 717 find that the letter as a purported answer is untime- ly The Region in its November 14 letter extended the time for receipt of an answer to November 21 The Respondent's letter, dated November 21, mailed sometime thereafter2 and not received until November 28, was clearly untimely The letter also fails as a proper answer because it does not specifi- cally admit, deny, or explain each of the facts al- leged in the complaint Moreover, no contention raised in the Respondent's letter warrants denial of the Motion for Summary Judgment The coin plaint, as noted, alleges that the Respondent violat- ed the Act by refusing to comply with a written request of the Union to discharge employees who had failed or refused to comply with the union-se- cunty clause in the parties' contract The Respond- ent does not deny this refusal but counters that economic considerations forced it into this position This is not a valid defense to the particular viola- tion alleged or a relevant consideration in assessing the legality of the Respondent's inaction In grant- ing the Motion for Summary Judgment, we further note that the Company did not respond to the Notice to Show Cause, and has therefore failed adequately to explain its failure to file a timely and proper answer Accordingly, in view of the Re spondent's failure to file an answer that comports with the Board's rules, and in the absence of good cause being shown for the failure to file a timely and proper answer, we grant the General Counsel's Motion for Summary Judgment 3 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a California corporation with an office and place of business in Brisbane, Califor- nia, has been engaged in the manufacture and non retail sale and distribution of fan coils and related products During the calendar year ending Decem- ber 31, 1987, the Respondent, in the course and conduct of its operations, sold and shipped from its Brisbane, California facility goods and materials valued in excess of $50,000 directly to points out- side the State of California We find that the Re- 2 There are two postmarks on the envelope that contained the letter- one is dated November 22 and the other is dated November 26 2 As noted in its November 21 letter to the Region the Respondent stated that it did not understand the requirement for further statements prior to the hearing and that [a]n affidavit was taken by Mr Jack Marks on October 19 1988 which I believed was our proper response This explanation for failing to file a timely answer does not constitute good cause within the meaning of Section 102 20 in light of the fact that the complaint the acting regional attorneys November 14 letter extend ing the due date to file an answer and the Notice to Show Cause all served on the Respondent after October 19 put the Respondent on notice that an answer was required spondent 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 organization 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 the purposes of collec- tive-bargaining within the meaning of Section 9(b) of the Act All sheet metal production workers, welders and helpers employed by the Respondent at its Brisbane, California location, excluding all other employees, office clerical employees, guards and supervisors as defined in the Act Since at least July 1, 1987, and at all material times, the Union has been the designated exclusive collective-bargaining representative of the Re- spondent's employees in the unit described above, and the Union has been recognized as such repre- sentative by the Respondent Such recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective by its terms for the period July 1, 1987, to June 30, 1990, and thereafter from year to year, unless either party serves notice of its desire to terminate or modify the agreement 60 days prior to June 30, 1990 The parties' most recent collective-bargaining agreement contains a union-security clause requir- ing employees to join and maintain union member- ship on completion of 30 days employment with the Respondent About September 1, the Respond- ent failed to continue in full force and effect all the terms and conditions of the agreement described above by refusing to honor the union-security clause, in that the Respondent refused to comply with a written request of the Union to discharge employees who had failed or refused to comply with the union security clause Based on the above, we find that the Respondent has, since September 1, refused to bargain collec- tively in good faith with the Union as the exclusive representative of the unit employees in violation of Section 8(a)(5) and (1) and Section 8(d) of the Act See King Electrical Mfg Co, 229 NLRB 615 (1977), Litton Systems, 283 NLRB 973 (1987) CONCLUSION OF LAW By failing and refusing to honor the union-secu rity clause in its agreement with the Union, the Re- spondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1), Section 8(d), and Section 2(6) and (7) of the Act 718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 honor the union-security provision of its 1987-1990 collec tive-bargaining agreement with the Union ORDER The National Labor Relations Board orders that the Respondent, McIntyre Engineering Co, Inc, Brisbane, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Failing or refusing to continue in full force and effect all the terms and conditions of its agree- ment with the Union by refusing to comply with the union-security provision of its 1987-1990 col- lective bargaining agreement with the Union (b) 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) Honor the union-security clause in the 1987- 1990 collective-bargaining agreement (b) Post at its Brisbane, California facility copies of the attached notice marked "Appendix "4 Copies of the notice, on forms provided by the Re- gional Director for Region 20, 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 (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 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 WE WILL NOT fall or refuse to continue in full force and effect all the terms and conditions of our agreement with the Union by refusing to comply with the union-security provision of our 1987-1990 collective-bargaining agreement with the Union 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 honor the union-security clause in the 1987-1990 collective-bargaining agreement MCINTRYE ENGINEERING CO, INC 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 Na ion 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