American Gem Sprinkler Co.

National Labor Relations Board - Board Decisions

Jan 24, 1995

316 N.L.R.B. 102 (N.L.R.B. 1995)

102
316 NLRB No. 17
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Both charges and both complaints were served by certified mail.
Both complaints and the charge in Case 5–CA–24278 were returned
unclaimed. Although the Respondent now contends that it does not
have access to its office at the address to which the charges and
complaints were mailed, the Regional Director’s order consolidating
cases and setting the date for hearing was mailed to the same ad-
dress as the other documents, and delivery was accepted. The Re-
spondent, in any event, does not assert that it did not receive copies
of the charges and complaints. Failure or refusal to accept delivery
of certified mail will not be allowed to defeat the purposes of the
Act. Michigan Expediting Service, 282 NLRB 210 fn. 6 (1986).
2 The letterhead on which the Respondent’s response is written
shows a different address, in Annapolis Junction, Maryland. The Re-
spondent does not state whether it has access to records in that of-
fice.
3 See Hahn Motors, 314 NLRB 511 (1994) (where the Board’s Re-
gional Office apparently possessed copies of the respondent’s payroll
records and other documents but the respondent made no request for
access to those documents, the Board rejected the respondent’s alle-
gation that it lacked access to the documents and therefore had no
way of knowing whether the allegations of the backpay specification
were accurate).
American Gem Sprinkler Co., Inc. and Road Sprin-
kler Fitters Local Union No. 669, United Asso-
ciation of Journeymen & Apprentices of the
Plumbing and Pipefitting Industry of the
United States and Canada, AFL–CIO and
United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, Local
Union 536. Cases 5–CA–24278 and 5–CA–24386
January 24, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On June 9 and 10, 1994, the General Counsel of the
National Labor Relations Board issued complaints al-
leging that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act. Although
properly served copies of the charges and complaints,1
the Respondent has failed to file an answer to either
complaint.
On November 21, 1994, the General Counsel filed
a Motion for Summary Judgment. On November 25,
1994, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent
filed a response.
The National Labor Relations Board has delegated
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 Regulations
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 complaints in each case state that unless
an answer is filed within 14 days of service, ‘‘all the
allegations in the complaint shall be considered to be
admitted to be true and shall be so found by the
Board.’’ Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that counsel for
the General Counsel, by letter dated November 10,
1994, notified the Respondent that unless it filed an-
swers to the complaints, or requested an extension of
time for filing, by November 17, 1994, a Motion for
Summary Judgment would be filed. The Respondent
did not reply to that letter, and neither filed answers
to the complaints nor requested an extension of time
for doing so.
In its response to the Notice to Show Cause, the Re-
spondent asserts that it is prevented by a court order
from visiting its office in Woodbine, Maryland, and
thus is ‘‘unable to supply your office with our
records.’’2 The Respondent avers that ‘‘at this time’’
it is in a serious financial position. It also alleges that
it is in the midst of court proceedings, and therefore
that its attorney ‘‘is also very involved at this time.’’
The Respondent states that it does not agree with ‘‘the
Unions position’’ and would appreciate another chance
to present its information to the Board.
We find that the Respondent has not shown good
cause for its failure to file timely answers to the com-
plaints or, prior to the issuance of the Notice to Show
Cause, for its failure to request a further extension of
time to do so. First, the Respondent’s claim that it is
now prevented by court order from entering one of its
facilities is irrelevant. The complaints were issued in
early June 1994. Under the Board’s Rules and Regula-
tions, the Respondent was required to answer them by
late June. The Respondent does not contend that it was
prevented from entering its office to obtain relevant
records at that time, or even as late as November 1994,
when counsel for the General Counsel advised the Re-
spondent that the time for filing answers had been ex-
tended. Thus, that the Respondent may now be pre-
cluded from entering its office does not explain why
it failed to answer the complaints in a timely fashion.
We note, in addition, that the Respondent does not rep-
resent that it has attempted to persuade the court to
allow it to retrieve relevant records from the office in
question.3 Moreover, the complaint in Case 5–CA–
24386 alleges that the Respondent unlawfully with-
drew recognition from Local 536. It is difficult to un-
derstand why the Respondent should require the assist-
ance of any records in answering that allegation. Fi-
nally, Section 102.20 of the Board’s Rules and Regula-
tions provides that if a respondent is without knowl-
edge concerning a complaint allegation, it may so
state, and such a statement will operate as a denial.
Thus, even if the Respondent had been denied access
to records that were necessary to answer either com-
103AMERICAN GEM SPRINKLER CO.
4 U.S. Telefactors Corp., 293 NLRB 567 (1989).
5 See Superior Home & Health Care, 287 NLRB 45, 46 (1987).
When a pro se respondent’s answer clearly denies the unfair labor
practice allegations of the complaint, the Board will not grant sum-
mary judgment for the General Counsel even if the answer does not
address all the factual allegations of the complaint and is not in a
form that comports with the Board’s Rules and Regulations. Tri-Way
Security, 310 NLRB 1222, 1223 (1993). Here, it is questionable
whether the leniency shown to pro se respondents should apply to
the Respondent, which is represented by counsel in other matters.
We need not address that issue, however, because the Respondent’s
statement does not specifically deny any of the complaint allega-
tions.
6 Indeed, the Respondent’s financial and legal problems and the
busy schedule of its counsel would not be cognizable defenses to the
allegations that it withdrew recognition from one union and failed
utterly and without explanation to provide information to the other,
even if those conditions had existed contemporaneously with the al-
legedly unlawful conduct. See FMC Corp., 290 NLRB 483, 489
(1988) (fact that employer was involved with other matters, includ-
ing litigation, no explanation for complete failure to respond to
union’s information request). Lack of access to its facility might
have excused a concurrent failure to provide information (but cer-
tainly not the withdrawal of recognition); however, the Respondent
does not make this argument.
plaint, it could have effectively denied the pertinent al-
legations by stating that it was without knowledge.
Similarly, the Respondent’s contention that it is now
suffering financial reverses does not explain why it
failed to file timely answers months ago. Nor, for the
same reason, does the Respondent’s representation that
its attorney is ‘‘very involved at this time [emphasis
added]’’ shed any light on its failure to answer the
complaints months ago, in a timely fashion, or to re-
quest an extension of time for filing. That the Re-
spondent’s attorney may be busy does not, in any
event, constitute good cause for failing to file a timely
answer.4
Finally, the Respondent’s statement that it does not
agree with ‘‘the Unions position’’ is too vague to con-
stitute an acceptable answer to the complaints, even if
good cause had been shown for the Respondent’s fail-
ure to file answers in a timely fashion. Section 102.20
of the Board’s Rules and Regulations requires that
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
the complaint, if no answer is filed, or any allega-
tion in the complaint not specifically denied or
explained in an answer filed, unless the respond-
ent shall state in the answer that he is without
knowledge, shall be deemed to be admitted to be
true and shall be so found by the Board, unless
good cause to the contrary is shown.
The Respondent’s statement does not specifically deny
any of the allegations of either complaint, let alone in-
dicate the basis for the denial. Such a statement does
not constitute a proper answer.5 Even assuming that
the Respondent meant to raise the predicaments men-
tioned in its response to the Notice to Show Cause as
defenses to the complaint allegations, the attempt
would be unavailing. Those current problems would
not excuse the allegedly unlawful acts committed
months ago.6
For all the foregoing reasons, we find that the Re-
spondent has not shown good cause for its failure to
answer the complaints in a timely fashion. We there-
fore grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Maryland corporation with an of-
fice and place of business at Woodbine, Maryland, is
engaged in the installation, alteration, maintenance, re-
pair, and service of fire sprinkler systems. During the
12 months preceding the issuance of the complaints,
the Respondent, in the course of its business oper-
ations, provided services valued in excess of $50,000
for other enterprises within the State of Maryland, in-
cluding D & M General Contractors Co., Inc. (D &
M). D & M, a Maryland corporation, is engaged in
general contracting at its Rockville, Maryland location
and received gross revenues in excess of $1 million
during the preceding 12-month period. During the
same period, D & M purchased and received goods
and materials valued in excess of $50,000 directly
from points located outside the State of Maryland. At
all material times, D & M has been engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the
Unions, Local 669 and Local 536, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Case 5–CA–24278
The following employees (unit 1) constitute a unit
appropriate for collective bargaining within the mean-
ing of Section 9(b) of the Act:
All full-time and regular part-time journeymen
and apprentice sprinkler fitters engaged in the in-
stallation, alteration, maintenance, repair, and
service of automatic sprinkler and fire control sys-
tems; excluding all other employees, guards, and
supervisors as defined in the Act.
Since about 1988, Local 669 has been the designated
exclusive collective-bargaining representative of unit 1
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The Board has held that social security numbers are not presump-
tively relevant. Accordingly, in the absence of a showing here of
their potential or probable relevance, we dismiss the allegation con-
cerning the failure to produce social security numbers. Turner-
Brooks of Ohio, 310 NLRB 856, 857 fn. 1 (1993).
and has been recognized as such by the Respondent.
Recognition has been embodied in a contract between
Local 669 and the National Fire Sprinkler Association,
Inc., which is composed of various employers engaged
in the installation, maintenance, and repair of sprinkler
systems, one purpose of which is to represent its em-
ployer-members in negotiating and administering col-
lective-bargaining agreements. Since March 29, 1991,
the Respondent has been signatory to the contract de-
scribed above pursuant to its assent and interim agree-
ment as an independent contractor. At all times since
March 29, 1991, Local 669 has been the exclusive
Section 9(a) collective-bargaining representative of unit
1.
Since about February 7, 1994, Local 669 has re-
quested the Respondent to furnish the following infor-
mation:
(1) Are you and/or American Gem Sprinkler
Co., Inc. (‘‘American Gem’’) a party to any
agreement(s), contract(s) and/or subcontract(s),
whether oral or written, with Figgie International,
Inc. (‘‘Figgie’’) and/or any of Figgie’s subsidi-
aries or other related entities, including, but not
limited to ‘‘Automatic’’ Sprinkler Corporation of
America (‘‘Automatic’’) or American LaFrance?
If so, please provide Local 669 with a copy of
each such agreement. If the agreement is oral,
provide the date(s), parties, and the term(s) of
each such agreement.
(2) Do you and/or American Gem and/or any of
its officers or employees have any business rela-
tionship with Figgie and/or any of its subsidiaries
or other related entities, including but not limited
to, Automatic or American La France? If so,
please describe each such relationship in detail,
including when the relationship began.
(3) Please provide the names, addresses, tele-
phone numbers and social security numbers of
each and every employee of America Gem that is
performing or that has performed bargaining unit
work within the jurisdiction of Local 669 during
the period January 1, 1993 to the present.
(4) For each employee named above, please list
the date of hire, the dates and hours worked and
the wages and fringe benefits paid to such em-
ployee for each hour of bargaining unit work per-
formed. Additionally, list all travel expenses paid
(including travel time, mileage and subsistence) to
each of the above named employees.
(5) Please provide the names and locations of
those jobs on which sprinkler and/or fire protec-
tion work is being and has been subcontracted to
or from any other entity, or which has been or is
being performed by the employees of American
Gem during the period January 1, 1993 to the
present.
Please note that the nature of this request is
continuing. That is, the information requested as
described above should be provided from the date
specified above to the week-ending date imme-
diately preceding your response. We do not re-
quire this information to be supplied in a particu-
lar form and will reimburse you for the reasonable
costs of photocopying.
With the exception of employee social security num-
bers, the information requested is necessary for, and
relevant to, Local 669’s performance of its duties as
the exclusive collective-bargaining representative of
unit 1.7
Since about February 24, 1994, the Respondent has
failed and refused to furnish the requested information
to Local 669. By that conduct, the Respondent has
failed and refused to bargain collectively in good faith
with the exclusive representative of its employees
within the meaning of Section 8(d) of the Act, in vio-
lation of Section 8(a)(5) and (1) of the Act.
B. Case 5–CA–24386
The following employees of the Respondent (unit 2)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b):
All journeymen sprinkler fitters and apprentices
engaged in the installation, dismantling, mainte-
nance, repairs, adjustments and corrections of all
fire protection and fire control systems, excluding
all other employees, guards, and supervisors as
defined in the Act.
Since about 1988, Local 536 has been the des-
ignated exclusive collective-bargaining representative
of unit 2 and has been recognized as such by the Re-
spondent. Recognition has been embodied in a contract
between Local 536 and the National Fire Sprinkler As-
sociation, Inc. The most recent contract was effective
from June 1, 1991, through May 31, 1994. Since July
11, 1991, the Respondent has been a nonmember sig-
natory to the contract. At all times since July 11, 1991,
Local 536 has been the exclusive Section 9(a) rep-
resentative of unit 2.
On about January 29, 1994, the Respondent with-
drew recognition from Local 536. By that conduct, the
Respondent has failed and refused to bargain collec-
tively in good faith with the exclusive representative of
its employees within the meaning of Section 8(d), in
violation of Section 8(a)(5) and (1).
105AMERICAN GEM SPRINKLER CO.
8 We shall not impose any make-whole remedies on the Respond-
ent, because the relevant complaint does not allege that it made any
unilateral changes in its employees’ wages, hours, or other terms and
conditions of employment, or that after it withdrew recognition, it
failed to adhere to the terms of the collective-bargaining agreement
then in effect.
9 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.’’
CONCLUSION OF LAW
By failing and refusing to bargain with the Unions
in the manner set forth above, the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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 de-
signed to effectuate the policies of the Act. Specifi-
cally, we shall order the Respondent to provide Local
669 with the information it requested about February
7, 1994, except for employee social security numbers.
We shall order the Respondent, on request, to recog-
nize and bargain with Local 536 as the exclusive rep-
resentative of employees in unit 2 and, if an under-
standing is reached, to embody it in a signed agree-
ment.8
ORDER
The National Labor Relations Board orders that the
Respondent, American Gem Sprinkler Co., Inc.,
Woodbine, Maryland, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to provide information re-
quested by Road Sprinkler Fitters Local Union No.
669, United Association of Journeymen & Apprentices
of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO, that is relevant and nec-
essary to the performance of its responsibilities as the
exclusive collective-bargaining representative of the
Respondent’s employees in the following appropriate
unit (unit 1):
All full-time and regular part-time journeymen
and apprentice sprinkler fitters engaged in the in-
stallation, alteration, maintenance, repair, and
service of automatic sprinkler and fire control sys-
tems; excluding all other employees, guards, and
supervisors as defined in the Act.
(b) Withdrawing recognition from United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Can-
ada, Local 536, as the exclusive collective-bargaining
representative of the Respondent’s employees in the
following appropriate unit (unit 2):
All journeymen sprinkler fitters and apprentices
engaged in the installation, dismantling, mainte-
nance, repairs, adjustments and corrections of all
fire protection and fire control systems, excluding
all other employees, guards, and supervisors as
defined in the Act.
(c) 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) Furnish the information requested by Local 669
about February 7, 1994, except for employee social se-
curity numbers.
(b) On request, recognize and bargain with Local
536 as the exclusive collective-bargaining representa-
tive of employees in unit 2 with respect to wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody it in a
signed agreement.
(c) Post at its facility at Woodbine, Maryland, or, if
the Respondent does not have access to that facility,
at any other facility at which it employs employees
represented by either Local 669 or Local 536, copies
of the attached notice marked ‘‘Appendix.’’9 Copies of
the notice, on forms provided by the Regional Director
for Region 5, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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 or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to provide information
requested by Road Sprinkler Fitters Local Union No.
669, United Association of Journeymen & Apprentices
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO that is relevant and nec-
essary to the performance of its responsibilities as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit:
All full-time and regular part-time journeymen
and apprentice sprinkler fitters engaged in the in-
stallation, alteration, maintenance, repair, and
service of automatic sprinkler and fire control sys-
tems; excluding all other employees, guards, and
supervisors as defined in the Act.
WE WILL NOT withdraw recognition from United
Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States
and Canada, Local 536, as the exclusive collective-bar-
gaining representative of our employees in the follow-
ing appropriate unit:
All journeymen sprinkler fitters and apprentices
engaged in the installation, dismantling, mainte-
nance, repairs, adjustments and corrections of all
fire protection and fire control systems, excluding
all other employees, guards, and supervisors as
defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL furnish the information requested by Local
669 about February 7, 1994, except for employee so-
cial security numbers.
WE WILL, on request, recognize and bargain with
Local 536 and, if an understanding is reached, embody
it in a signed agreement.
AMERICAN GEM SPRINKLER CO., INC.