Daywork Fire Protection, Inc.

328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Daywork Fire Protection, Inc. and Road Sprinkler Fitters, Local Union No. 669, U.A., AFL-CIO. Case 22-CA-16722 July 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT Upon a charge filed by the Union, Road Sprin- kler Fitters, Local Union No 669, United Associa- tion of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, the General Counsel of the National Labor Relations Board issued a com- plaint on February 20, 1990, 1 against Daywork Fire Protection, Inc , the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act Although properly served with copies of the charge and complaint, the Respondent has failed to file an answer On March 19, the General Counsel filed a Motion for Summary Judgment On March 21, the Board issued an order transfernng the proceeding to the Board and a Notice to Show Cause why the motion should not be granted The Respondent filed a response to the Notice to Show Cause 2 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 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" The undisputed allega- tions in the Motion for Summary Judgment dis- close that a copy of the February 20 complaint was duly served by certified mail on the Respondent By letter dated February 26, the Respondent's at- torney notified the Regional Director for Region 22 that it had filed a Petition in Bankruptcy under Chapter 11, and argued that the complaint should thus be barred by the automatic stay provisions of the Bankruptcy Code The Respondent's attorney 'All dates are in 1990 unless noted 2 On April 26 the Union sought leave to file a responsive brief support- ing the General Counsel's Motion for Summary Judgment The Union's request is granted and its brief has been duly considered also demanded that the Region cancel the unfair labor practice hearing and dismiss the complaint On March 2, the Regional attorney for Region 22 wrote the Respondent's attorney advising that unfair labor practice proceedings under the Nation- al Labor Relations Act are excepted from the auto- matic stay provisions of Section 362(b)(4) of the Bankruptcy Code NLRB v Evans Plumbing Go, 639 F 2d 291 (5th Cu- 1981), In re Nicholas, Inc, 55 BR 212, 214 (Bankr D NJ 1985), NLRB v Edward Cooper Painting, 804 F 2d 934 (6th Cir 1986) The Regional attorney's March 2 letter also advised the Respondent's attorney that the Region intended to proceed with the hearing in this case and that the Respondent must file an answer to the complaint The letter gave the Respondent an ex- tension of time until March 9 to file an answer and stated that "fflailure to file an answer by close of business on March 9, 1990 will result in the filing of a motion for summary judgment against your client The Respondent did not file an answer or timely request an extension of time to do so In its re- sponse to the Notice to Show Cause, 3 however, the Respondent argues that its February 26 letter constitutes a response to the complaint allegations that should, at a minimum, result in a hearing before an administrative law judge Alternatively, the Respondent seeks an extension of time to file an answer to the complaint Finally, the Respondent alleges that there are factual issues in dispute war- ranting a hearing on the ments We find the Respondent's arguments unpersua- sive Its institution of bankruptcy proceedings does not deprive the Board of jurisdiction to process this unfair labor practice case Katco, Inc , 295 NLRB No 92 (June 30, 1989) (unreported) Nor does its February 26 letter constitute an answer The letter does not specifically admit, deny, or ex- plain each of the facts alleged in the complaint, as required by Section 102 20 of the Board's Rules and Regulations 4 See generally Superior Home ct Health Care, 287 NLRB 45 (1987) The Respondent's response to the Board's Show Cause Order similarly is inadequate The response does not sufficiently explain the Respondent's fail- ure to file a proper and timely answer to the corn- 3 The Notice to Show Cause specified that April 4 was the deadline for filing a response On Apnl 3, the Board granted the Respondent an extension until April 23 to file its response Although the Respondent did not file its response with the Board until Apnl 24, it timely served It on the parties on April 20 Accordingly, the response was accepted by the Executive Secretary's Office of the Board Neither the General Counsel nor the Charging Party subsequently moved to strike the response 4 We find no merit in the Respondent's claim that the Feb 26 letter put the Board on notice of its "Intention to litigate the propriety of the charge and complaint" Even if the letter served this purpose, it would not satisfy the requirements of Sec 102 20 299 NLRB No 40 DAYWORK FIRE PROTECTION 329 plaint, or provide a cogent reason for further ex- tending the answer penod And, the Respondent's attack on the complaint's factual allegations, while appropriate in a timely answer, simply came too late when included for the first time in the response to the Notice to Show Cause See generally Middle Eastern Bakery, 243 NLRB 503, 504 fn 1 (1979), Petitto Bros. Inc , 291 NLRB No 139, slip op at 2- 3 (Nov 30, 1988) (unreported) In view of the above, we find that the Respondent has not shown good cause for its failure to file an acceptable answer In accordance with the Rules set forth above, the allegations in the complaint are deemed to be admitted to be true Accordingly, we grant the Motion for Summary Judgment On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a corporation with an office and place of business in Manalapan, New Jersey, is a contractor in the automatic fire sprinkler indus- try During the 12 months preceding issuance of the complaint, the Respondent purchased and re- ceived at its Manalapan facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of New Jersey 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 A The Representative Status of the Union 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 journeymen sprinkler fitters and appren- tices employed by Respondent at its Manala- pan, New Jersey facility, excluding office cler- ical employees, professional employees, guards and supervisors as defined in the Act At all material times, the Union has been the des- ignated and recognized exclusive bargaining repre- sentative of the unit under Section 9(a) of the Act This recognition has been embodied in successive collective-bargaining agreements between the Re- spondent and the Union, the most recent of which is effective by its terms from April 1, 1988, to March 31, 1991 At all material times, the Union, by virtue of Section 9(a) of the Act, has been the exclusive representative of the Respondent's em- ployees for the purpose of collective bargaining B Refusal to Comply with the Contract Since about September 1989 and continuing to date, the Respondent has modified the existing terms and conditions of employment in the unit by unilaterally discontinuing contractually required contributions to the National Automatic Sprinkler Industry Welfare and Pension Funds These wel- fare and pension fund provisions relate to wages, hours, and other terms and conditions of employ- ment in the unit and are mandatory subjects for purposes of collective bargaining We find that these modifications constitute unilateral midterm contractual changes in violation of Section 8(a)(5) and (1) of the Act C Repudiation of the Contract Since about December 18, 1989, the Respondent has repudiated the collective-bargaining agreement with the Union covenng unit employees We find that this repudiation violates Section 8(a)(5) and (1) of the Act D Withdrawal of Recognition Since about December 18, 1989, the Respondent withdrew its recognition from the Union as the ex- clusive collective-bargaining representative of the unit We find that this withdrawal violates Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW 1 By the acts described above in paragraphs II,B,C, and D, the Respondent has failed and re- fused, and is failing and refusing, to bargain collec- tively and in good faith with the representative of its employees, and the Respondent thereby has been engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 2 The unfair labor practices of the Respondent, described above, affect commerce within the mean- ing of Section 2(6) and (7) 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 make whole unit employees for any losses they suffered by the Respondent's failure to adhere to the terms of the contract, Ogle Protection Service, 183 NLRB 682 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1970), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) We shall also order the Re- spondent to make the required contributions to the National Automatic Spnnkler Industry Welfare and Pension Funds and to transmit to the funds the contributions it failed to make since September 1989 5 We shall further order the Respondent to make whole unit employees for any loss of benefits caused by its failure to make these required fund contributions and to reimburse employees for any expenses ensuing from the Respondent's unlawful failure to make the contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn 2 (1980), enfd mem 661 F 2d 940 (9th Cir 1981) ORDER The National Labor Relations Board orders that the Respondent, Daywork Fire Protection, Inc , Manalapan, New Jersey, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Instituting unilateral changes in contractual terms and conditions of employment of its unit em- ployees without the Union's consent during the term of the parties' collective-bargaining agreement by failing to make contractually required contribu- tions to the National Automatic Sprinkler Industry Welfare and Pension Funds (b) Failing and refusing to give effect to and fully comply with its collective-bargaining agree- ment with Road Sprinkler Fitters, Local Union No 669, U A, AFL-CIO (c) Refusing to recognize or bargain collectively with the Union concerning wages, hours, and other terms and conditions of employment in the follow- ing appropriate unit All journeymen sprinkler fitters and appren- tices employed by Respondent at its Manala- pan, New Jersey facility, excluding office cler- ical employees, professional employees, guards and supervisors as defined in the Act (d) In any like or related manner mterfenng 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 Road Sprinkler Fit- ters, Local Union No 669, U A, AFL-CIO, as the exclusive representative of employees in the fol- lowing unit 'Any additional amounts owed with respect to these fund contribu- tions shall be calculated in the manner set forth in Merryweather Optical Co. 240 NLRB 1213 (1979) All journeymen sprinkler fitters and appren- tices employed by Respondent at its Manala- pan, New Jersey facility, excluding office cler- ical employees, professional employees, guards and supervisors as defined in the Act (b) Adhere to the terms and conditions of its col- lective-bargaining agreement with the Union, in- cluding, but not limited to, its provisions governing welfare and pension contnbutions (c) Make whole unit employees for any loss of benefits suffered as a result of the Respondent's failure to abide by the terms of its collective-bar- gaining agreement with the Union, including making required payments to the National Auto- matic Sprinkler Industry Welfare and Pension Funds and by reimbursing employees for any ex- penses ensuing from the Respondent's unlawful failure to make such payments, in the manner set forth in the remedy section of this decision (d) 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 (e) Post at its Manalapan facility copies of the at- tached notice marked "Appendix " 6 Copies of the notice, on forms provided by the Regional Direc- tor for Region 22, after being signed by the Re- spondent'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 employes are customarily posted Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply ° 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" DAYWORK FIRE PROTECTION 331 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 institute unilateral changes in con- tractual terms and conditions of employment of our unit employees without the Union's consent during the term of the parties' collective-bargaining agree- ment by failing to make contractually required con- tributions to the National Automatic Sprinkler In- dustry Welfare and Pension Funds WE WILL NOT refuse to recognize or bargain with Road Sprinkler Fitters, Local Union No 669, U A, AFL-CIO, as the exclusive bargaining repre- sentative of our employees in the following unit All journeymen sprinkler fitters and appren- tices employed by Respondent at its Manala- pan, New Jersey facility, excluding office cler- ical employees, professional employees, guards and supervisors as defined in the Act WE WILL NOT fail to make contributions on behalf of our unit employees to the National Auto- matic Sprinkler Industry Welfare and Pension Funds WE WILL NOT fail and refuse to adhere to the terms of our 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 nghts guaranteed you by Section 7 of the Act WE WILL, on request, bargain with the Union as the exclusive representative of employees in the above-described unit WE WILL adhere to the terms of our collective- bargammg agreement with the Union, including, but not limited to, its welfare and pension contribu- tion provisions WE WILL pay into the National Automatic Sprinkler Industry Welfare and Pension Funds those contributions we failed to make as a result of our unlawful discontinuance of fund payments WE WILL make unit employees whole for any losses or expenses they may have suffered as a result of our failure to abide by the terms of our collective-bargaining agreement with the Union, in- cluding any losses or expenses resulting from our unilateral discontinuance of contractually required welfare and pension contributions DAYWORK FIRE PROTECTION, INC \