Rogan Brothers Sanitation, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 355 NLRB No. 31 182 Rogan Brothers Sanitation, Inc. and Local 813, Inter- national Brotherhood of Teamsters. Case 2– CA–39528 May 11, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union on October 9, 2009, the General Counsel issued the complaint on December 30, 2009, against Rogan Brothers Sanitation, Inc., the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Act. The Re- spondent failed to file an answer. On February 19, 2010, the General Counsel filed a Petition for Summary Judgment with the Board and Memorandum in Support of Petition.1 Thereafter, on February 22, 2010, 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. The alle- gations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that unless an answer was received by the Regional Of- fice by January 12, 2010, the Board may find, pursuant to a motion for default judgment, that the allegations in the complaint are true. Further, the undisputed allega- tions in the General Counsel’s motion disclose that the Region, by letter dated January 20, 2010, notified the Respondent that unless an answer was received by Janu- ary 29, 2010, a motion for default judgment would be filed. On February 1, 2010, the Region granted the Re- spondent’s request for an extension of time in which to answer the complaint to February 3, 2010. Despite this extension, however, the Respondent failed to file an an- swer. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s Motion for Default Judgment. On the entire record, the Board makes the following 1 On February 25, 2010, the General Counsel filed a corrected Peti- tion and a corrected Memorandum entitled “Motion for Default Judg- ment” and “Memorandum in Support of Motion for Default Judgment.” FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a New York corporation, with an office and place of business located at 1014 Saw Mill River Road, Yonkers, New York, has been engaged in the business of refuse and garbage pick- up and disposal, including at private homes and resi- dences. Annually, the Respondent, in conducting its operations described above, derived gross revenues in excess of $500,000, and purchased and received at its place of business goods valued in excess of $5000 from suppliers of fuel and truck and automotive parts and ma- terials located within the State of New York, each of which other enterprises has received these goods directly from points outside the State of New York. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, Local 813, Interna- tional Brotherhood of Teamsters, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent, acting in its behalf. James Rogan President Michael Vetrano General Manager The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All chauffeurs, helpers, mechanics, and welders em- ployed by Respondent but excluding all employees not eligible for membership in the Union in accordance with provisions of the Labor Management Relations Act of 1947, as amended. Since about December 1, 2001, and at all material times, the Union has been the designated exclusive col- lective-bargaining representative of the unit, and since then, the Union has been recognized as such by the Re- spondent. This recognition has been embodied in a se- ries of collective-bargaining agreements, the most recent of which was effective from December 1, 2005, through November 30, 2008. At all material times, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. ROGAN BROS. SANITATION, INC. 183 Since about August 27, 2009, the Respondent has failed and refused to meet and bargain with the Union as the exclusive collective-bargaining representative of the unit. CONCLUSION OF LAW By the conduct described above, the Respondent has been failing and refusing to bargain collectively and in good faith with the Union as the exclusive collective- bargaining representative of the unit, in violation of Sec- tion 8(a)(5) and (1) of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain 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. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by failing and refusing, since about August 27, 2009, to bargain with the Union, we shall order the Re- spondent, on request, to meet and bargain with the Union as the exclusive collective-bargaining representative of the unit and, if an understanding is reached, to embody the understanding in a signed agreement. ORDER The National Labor Relations Board orders that the Respondent, Rogan Brothers Sanitation, Inc., Yonkers, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to meet and bargain collec- tively and in good faith with Local 813, International Brotherhood of Teamsters, as the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All chauffeurs, helpers, mechanics, and welders em- ployed by Respondent but excluding all employees not eligible for membership in the Union in accordance with provisions of the Labor Management Relations Act of 1947, as amended. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, meet and bargain with the Union as the exclusive collective-bargaining representative of the unit employees on terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement. (b) Within 14 days after service by the Region, post at its facility in Yonkers, New York, copies of the at- tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since August 27, 2009. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to meet and bargain col- lectively and in good faith with Local 813, International Brotherhood of Teamsters, as the exclusive collective- bargaining representative of our employees in the follow- ing unit: 2 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- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 184 All chauffeurs, helpers, mechanics, and welders em- ployed by us but excluding all employees not eligible for membership in the Union in accordance with provi- sions of the Labor Management Relations Act of 1947, as amended. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, meet and bargain with the Union as the exclusive collective-bargaining representative of the unit employees on terms and conditions of employ- ment, and put in writing and sign any agreement reached. ROGAN BROTHERS SANITATION, INC.