Active Metal Mfg.

National Labor Relations Board - Board Decisions

Mar 30, 1995

316 N.L.R.B. 974 (N.L.R.B. 1995)

974
316 NLRB No. 150
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates hereinafter are in 1993, unless specified otherwise.
2 The Respondent’s answer ‘‘admitted & denied,’’ without further
explanation, the substantive allegations of the complaint.
Active Metal Manufacturing, Inc. and Teamsters
Local Union 837 a/w International Brother-
hood of Teamsters, AFL–CIO. Case 4–CA–
21317
March 30, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, BROWNING, AND
TRUESDALE
Upon a charge and an amended charge filed by
Teamsters Local Union 837 a/w International Brother-
hood of Teamsters, AFL–CIO (the Charging Party) on
December 24, 1992, and January 19, 1993,1 respec-
tively, the Regional Director for Region 4 of the Na-
tional Labor Relations Board issued a complaint on
February 18, against Active Metal Manufacturing, Inc.
(the Respondent) alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations Act.
The complaint alleges that the Respondent failed to
comply with its obligations under the parties’ collec-
tive-bargaining agreement by discontinuing unit em-
ployees’ health and welfare payments and by failing to
remit union dues deducted from unit employees’
wages. Copies of the charges and complaint were
properly served on the Respondent. Although the Re-
spondent filed a timely answer on March 19, it failed
to sign its answer, state its address, or serve copies on
the Union or its counsel.2
On December 13, the General Counsel filed a Mo-
tion for Summary Judgment, with exhibits attached.
On December 17, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause by January 3, 1994, why the motion should not
be granted. The Respondent did not file a response to
the Notice to Show Cause to explain its failure to
serve its answer in accordance with the Board’s Rules
and Regulations. The allegations in the motion are
therefore undisputed.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
Ruling on the Motion for Summary Judgment
Section 102.21 of the Board’s Rules states, ‘‘Imme-
diately upon the filing of his answer, respondent shall
serve a copy thereof on the other parties. . . . A party
who is not represented by an attorney shall sign his an-
swer and state his address.’’
Under the Rules, the Respondent’s time for filing an
answer to the complaint in this case expired on March
4. On March 10, the Regional Office extended the time
to March 19. On March 19, the Respondent, who was
not represented by counsel and was proceeding pro se,
timely filed an answer to the complaint. The Respond-
ent did not sign its answer, state its address, or serve
a copy on the Union or its counsel. However, the Re-
spondent attached to its answer a signed covering letter
that stated its address.
By letter dated March 19, the Regional Office in-
formed the Respondent that its answer must be signed
and served on the other parties by March 31. The Re-
spondent provided no evidence that it had done so.
On May 10, the Regional Office again advised the
Respondent that its answer must be signed and served
on the other parties by May 18, and that if the Re-
spondent failed to do so, a motion to strike the answer
or a Motion for Summary Judgment would be filed.
The Respondent again failed to furnish evidence of
service of its answer on the other party to this proceed-
ing.
The General Counsel’s Motion for Summary Judg-
ment states that the Respondent’s March 19 cover let-
ter submitted with its answer arguably met the require-
ment that a party’s answer be signed and that it state
the party’s address. The General Counsel, however, al-
leges that the Respondent did not comply with the re-
quirement that a copy of its answer be served on the
other parties because it did not serve its answer on the
Charging Party or its counsel, even though it was re-
minded to do so twice, in writing, by the Regional Of-
fice.
The General Counsel contends that the Respondent
has failed to comply with Section 102.21 of the
Board’s Rules concerning the service of an answer on
the parties. Accordingly, the General Counsel moves
that the allegations of the complaint be deemed to be
admitted as true.
Having duly considered the matter, we find that
summary judgment is warranted here. There has been
no showing that the Respondent’s answer was served
on the Charging Party or its counsel, as required by
Section 102.21 of the Board’s Rules. The Respondent
failed to serve its answer even though the Regional Of-
fice reminded it to do so twice, in writing, by letters
dated March 19 and May 10. In addition, the Respond-
ent failed to file a response to the Notice to Show
Cause.
While it is true that the Respondent was not rep-
resented by counsel and was proceeding pro se, in the
circumstances of this case, we find its conduct in fail-
ing to comply with the service requirement is not ex-
cusable. The Respondent had four opportunities over
an extended period of time, from March 4, 1993, to
January 3, 1994, to comply with the service require-
ment or explain its failure to do so: before the March
4 due date; after the Regional Office’s March 19 and
May 10 letters; or after the issuance of the Notice to
Show Cause.
975ACTIVE METAL MFG.
3 See Jay-Lor Drains & Piping Maintenance, 300 NLRB 464
(1990); Richardson Security Co., 297 NLRB 738 (1990); Travelodge
San Francisco Civic Center, 242 NLRB 287, 288 (1979).
The Notice to Show Cause fully informed the Re-
spondent that in the absence of a response thereto, the
General Counsel’s motion could be granted, the allega-
tions of the complaint could be admitted to be true,
and that the Board could so find and order an appro-
priate remedy. The Respondent still failed to file a re-
sponse or any explanation for its failure to serve the
Charging Party.
In these circumstances, we find no basis for excus-
ing the Respondent’s failure to comply with the serv-
ice requirement of the Board’s Rules. In fact, to do so
would reward the Respondent for doing nothing to
comply with the Board’s Rules.3
The dissent notes that the Board has applied dif-
ferent, more lenient standards for pro se respondents.
Our decision here is an endorsement of, rather than a
departure from, that policy approach. The Board’s rec-
ognition of more lenient standards for pro se parties is
effectuated by the Region’s treatment of the Respond-
ent here. However, we believe that leniency ought not
to be limitless. Here, despite repeated efforts by the
Region to apprise the Respondent of its obligations
under our Rules, the Respondent made no effort to
comply or ask for further assistance. In such cir-
cumstances, we will not further excuse the Respond-
ent’s conduct.
The cases cited by our dissenting colleague are dis-
tinguishable. In those cases, the respondents made a
good-faith effort to comply with the Board’s Rules. In
none of those cases is there any indication that the re-
spondent was reminded repeatedly, in writing, that
their answers must be served on the other parties to the
proceedings. In the circumstances of this case, the Re-
spondent’s noncompliance with the Board’s Rule is so
blatant that we find the Respondent is not entitled to
a hearing on the merits of the complaint.
Accordingly, in view of the Respondent’s failure to
serve its answer on the Charging Party or its counsel
and in the absence of good cause being shown for the
failure to do so, the General Counsel’s Motion for
Summary Judgment is granted and the allegations of
the complaint shall be deemed to be true.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Pennsyl-
vania corporation, with an office and a place of busi-
ness in Philadelphia, Pennsylvania, has been engaged
in the manufacture of metal products. During the year
preceeding issuance of the complaint, in conducting its
business operations, the Respondent has purchased and
received at its facility goods valued in excess of
$50,000 directly from points outside the Common-
wealth of Pennsylvania. We find that the Respondent
is an employer engaged in commerce within the mean-
ing of Section 2(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 PRACTICES
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collective-
bargaining within the meaning of Section 9 (b) of the
Act:
All production and maintenance employees and
truck drivers, excluding guards and supervisors as
defined in the Act.
Since at least 1982, and at all material times, the
Union has been the designated exclusive collective-
bargaining representative of the unit employees. Since
on about February 1, 1992, the Respondent has been
bound by the current collective-bargaining agreement
in effect through July 4, 1993. Since at least 1982,
based on Section 9(a) of the Act, the Union has been
the exclusive collective-bargaining representative of
the unit.
Since about June 24, 1992, the Respondent has
failed to continue in effect all terms and conditions of
the agreement by failing to make health and welfare
contributions to ‘‘Keystone HMO’’ and to provide
Keystone HMO coverage to the unit as required by ar-
ticle XXIII of the parties’ agreement. Since about No-
vember 1, 1992, the Respondent has failed to continue
in effect all the terms of the parties’ agreement by fail-
ing to remit to the Union dues and fees deducted from
the wages of the unit employees as required by article
IV of the parties’ agreement. These contributions,
dues, and fees relate to wages, hours, and other terms
and conditions of employment of the unit and are man-
datory subjects of bargaining for the purposes of col-
lective bargaining. The Respondent engaged in this
conduct unilaterally, without prior notice to the Union
and without giving the Union an opportunity to bar-
gain concerning this conduct.
CONCLUSIONS OF LAW
By failing to make health and welfare contributions
required by its collective-bargaining agreement with
the Union, and by failing to remit to the Union dues
and fees deducted from the wages of unit employees
as required by the parties’ agreement, the Respondent
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (5)
and Section 2(6) and (7) of the Act.
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the Respondent’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
5 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
National 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.’’
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 de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing since June 24, 1992,
to make contractually required health and welfare pay-
ments, and by failing since November 1, 1992, to
remit to the Union dues and fees deducted from the
wages of its unit employees as required by the collec-
tive-bargaining agreement currently in effect, we shall
order the Respondent to honor the terms of the agree-
ment and to make whole its unit employees by making
all such delinquent payments, including any additional
amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979). In addition, the Respondent shall reimburse
unit employees for any expenses resulting from its fail-
ure to make the required contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).4 We also shall order the Respondent to
remit to the Union all dues and fees withheld from
bargaining unit employees’ pay, plus interest as set
forth in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Active Metal Manufacturing, Inc., Phila-
delphia, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
Teamsters Local Union 837 a/w International Brother-
hood of Teamsters, AFL–CIO as the exclusive collec-
tive-bargaining representative of its employees in the
unit described below, by failing to make the contrac-
tually required health and welfare payments and by
failing to remit to the Union dues and fees deducted
from the wages of the unit employees as required by
the agreement.
All production and maintenance employees and
truck drivers, excluding guards and supervisors as
defined in the Act.
(b) In any like or related manner interfering with,
restraining, 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) Honor the terms of the current collective-bar-
gaining agreement with the Union by making all the
contractually required health and welfare payments the
Respondent failed to make and by remitting to the
Union dues and fees deducted from employees’ wages,
in the manner set forth in the remedy section of this
decision.
(b) Make whole the unit employees by reimbursing
them for their expenses ensuing from its failure to
make the required payments, with interest, as set forth
in the remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in Philadelphia, Pennsylvania,
copies of the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
977ACTIVE METAL MFG.
MEMBER BROWNING, dissenting.
Five times over the past 3 years, the Board has con-
sidered whether to accept an answer to a complaint
that had not been served on the charging party, as re-
quired by Section 102.21 of the Board’s Rules and
Regulations. In each of the five cases, the answer was
filed without benefit of counsel. And in each case, the
Board denied the General Counsel’s Motion for Sum-
mary Judgment.
In April 1992, 2 years before I became a Member
of this Agency, the Board denied the General Coun-
sel’s Motion for Summary Judgment in Acme Bldg.
Maintenance, 307 NLRB 358, stating, inter alia, ‘‘Al-
though the Respondent’s letters were not served on the
Charging Party, we note that they were filed pro se.’’
Id. at 359 fn. 6.
In April 1993, the Board denied the General Coun-
sel’s Motion for Summary Judgment in Tri-Way Secu-
rity, 310 NLRB 1222, stating, inter alia, ‘‘The Re-
spondent also apparently failed to serve its letter on the
Charging Parties, but we again note the pro se basis
on which the Respondent was then proceeding.’’ Id. at
1223 fn. 5.
In September 1993, the Board denied the General
Counsel’s Motion for Summary Judgment in Dis-
mantlement Consultants, 312 NLRB 650, stating, inter
alia, ‘‘Although it does not appear that the Respond-
ent’s letter was served on the Charging Party as re-
quired by Sec. 102.21, we note the pro se basis on
which the Respondent was proceeding.’’ Id. at 651 fn.
6.
When I became a Member of this Board in March
1994, I accepted this precedent and applied it in two
cases in which I participated during 1994.
In August 1994, the Board denied the General
Counsel’s Motion for Summary Judgment in Carpentry
Contractors, 314 NLRB 824, stating, inter alia,
‘‘[A]lthough it does not appear that the Respondent’s
letters were served on the Charging Party as required
by Sec. 102.21 of the Board’s Rules and Regulations,
we again note the pro se basis on which the Respond-
ent was proceeding.’’ Id. at 825 fn. 10.
On October 17, 1994, the Board denied the General
Counsel’s Motion for Summary Judgment in
Harborview Electric Construction Co., 315 NLRB 301,
stating, inter alia, ‘‘Although, as noted above, it does
not appear that the Respondent’s letter answer was
served on the Charging Party, we again note the pro
se basis on which the Respondent was proceeding.’’
Id. at fn. 7.
As recently as January of this year, the Board sum-
marized this line of case law as showing ‘‘leniency
. . . to pro se respondents.’’ American Gem Sprinkler
Co., 316 NLRB 102 (1995).
Today, however, when presented with the sixth case
in which a pro se Respondent has not served its an-
swer on the Charging Party, a panel majority decides
not to extend ‘‘leniency’’ and instead grants the Gen-
eral Counsel’s Motion for Summary Judgment. The
majority reasons that prior respondents made a ‘‘good-
faith effort to comply with the Board’s Rules,’’ while
this Respondent’s noncompliance was ‘‘blatant’’ be-
cause it was ‘‘reminded repeatedly’’ of the service re-
quirement.
I am not persuaded that a principled basis exists for
distinguishing this case from its five predecessors. Al-
though it is certainly true that the Respondent received
two ‘‘reminder letters’’ from the General Counsel be-
fore he moved for summary judgment, a close reading
of Tri-Way Security, supra, shows that that respondent
received one such reminder letter and yet the Board
still denied the General Counsel’s motion. The dif-
ference between one reminder letter and two reminder
letters is, in my view, far too slim a reed on which to
support the opposite outcomes in the two cases. This
is particularly so in light of the language of the Mo-
tions for Summary Judgment which in each case effec-
tively ‘‘reminded’’ the Respondent of the service re-
quirement.
More importantly, the underlying rationale of the
five leniency cases would appear to be that although
the complaint notified each respondent that it ‘‘shall
serve a copy of its answer on each of the other par-
ties,’’ respondents proceeding without benefit of coun-
sel are unlikely to be familiar with such legal terms as
‘‘service.’’ If that is true, then the fact that the Re-
spondent here received further communications from
the Regional Office advising that ‘‘proof of service’’
was lacking and reiterating that the answer must be
‘‘served on the other parties’’ should be accorded no
weight whatsoever in deciding whether its pro se an-
swer should be accepted.
‘‘[T]he Board is [not] forever bound by prior prece-
dent, but . . . when it departs from controlling prece-
dent, it must present a reasoned explanation for the de-
parture.’’ Stardyne, Inc. v. NLRB, 41 F.3d 141 (3d Cir.
1994). In addition to this legal obligation, the Board,
as a practical matter, should provide clear guidance to
Agency personnel in the 34 Regional Offices as to
how they should proceed once they receive a pro se
respondent’s answer that has not been served on the
charging party. Believing as I do that today’s decision
fails to discharge both responsibilities, I respectfully
dissent.
978 DECISIONS 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain collectively
with Teamsters Local 837 a/w the International Broth-
erhood of Teamsters, AFL–CIO as the exclusive col-
lective-bargaining representative the employees in the
following unit by failing to make the contractually re-
quired health and welfare payments and by failing to
remit to the Union dues and fees deducted from unit
employees’ wages pursuant to the current collective-
bargaining agreement:
All production and maintenance employees and
truck drivers, excluding guards and supervisors as
defined in the Act.
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 honor the terms of the current collective-
bargaining agreement with Local 837 by making all
the contractually required health and welfare payments
we failed to make and by remitting to the Union the
dues and fees deducted from employees’ wages.
WE WILL make whole unit employees by reimburs-
ing them for any expenses they incurred because of
our failure to abide by the terms of the collective-bar-
gaining agreement by making the required payments,
plus interest.
ACTIVE METAL MANUFACTURING, INC.