Benkiser Electric

National Labor Relations Board - Board Decisions

Apr 28, 1987

283 N.L.R.B. 748 (N.L.R.B. 1987)

748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Charles Koffler , Lair Koffler, Steve Ferriea, Wilbert
Boepple, Ben Gantt and Frank Wong, a Part.
nership, d/b/a Benkiser - Electric and Interna-
tional Brotherhood of-Electrical Workers, Local
595. Case 32-CA-8302
28 April 1987
DECISION, AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
Upon_ a charge filed by the, Union 22 August
1986, the General Counsel of the National Labor
Relations Board issued a complaint 29 October
1986 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(1) and (5) of
the National Labor Relations Act.
Although the Respondent was properly served
copies of the charge and complaint, it has failed to
file a proper answer. Subsequent to the issuance of
the complaint and pursuant to the Respondent's re-
quest, the Regional, Attorney for Region 32 ex-
tended ,the date for submission of an answer to the
complaint to the close of business on 24 November
1986. On 25 November 1986 the Regional Office
received from the Respondent a one-paragraph
"mailgram" that had been sent the previous day at
6:03 p.m. and, which purported to deny "all
charges set forth in the above-referenced case."
The document failed to specifically admit, deny, or
explain each of the facts alleged in the complaint,
and there was no indication that copies of the doc-
ument had been served on the other parties to the
proceeding. On 31 December 1986 the Regional
Office sent the Respondent a certified letter advis-
ing that its answer was procedurally defective since
it did not meet the specificity and service require-
ments of Sections 102.20 and 102.21 of the Board's
Rules and Regulations. The letter further stated
that unless an answer in compliance with the Rules
was received by 9 January 1987, the Regional
Office would file a Motion for Summary Judgment
with the Board. Additionally it is undisputed that
the Regional Office, inter alia, advised the Re-
spondent by telephone that its mailgram answer
was procedurally defective and that summary judg-
ment would be sought unless a satisfactory answer
was received by the end of the week. Notwith-
standing such notification, the Respondent has
failed to submit a timely and proper answer to the
complaint.
On 28 January 1987 the General Counsel filed a
Motion for Summary Judgment, with exhibits at-
tached. On 30 January 1987 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-a response to
the Notice to Show Cause. Thereafter the--General
Counsel filed both a response to the Respondent's
response to the Notice to Show Cause and, a
motion to accept the General Counsel's response.
The National LaborRelati4ons 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 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 may
be so found by the Board-." Further, the allegations
in the Motion for Summary Judgment disclose that
the Regional Office, by letter dated 31 December
1986, and by telephone conversation on 6 January
1987, notified the Respondent's counsel that the
mailgram did not comply ' with the Board's Rules
and that unless an answer which conformed to the
Rules ^ was forthcoming, a Motion for Summary
Judgment would be filed. No such answer has been
filed.
In its response to, the Notice to Show Cause, the
Respondent contends that from 27 October until 24
November 1980-its principal owner Charles Koffler
was not present in the State and was therefore un-
available to meet with counsel to prepare an
answer to the complaint. The Respondent main-
tains, however, that during this time its counsel M.
Franklin Nichols III had several discussions with
the Regional Office regarding his intent generally
and specifically to deny each allegation of the com-
plaint on behalf of his client. The Respondent also
contends that after its 24 November request for ad-
ditional time to file an answer was denied by the
Regional Attorney, Nichols prepared the mailgram
based on facts obtained from representatives of the
Respondent, including some of the named parties.
Finally, the Respondent contends that under all
these circumstances the mailgram answer consti-
tutes sufficient compliance with the Board's Rules
and Regulations.
The Respondent also submitted the declarations
of Koffler and Nichols in response to the Notice to
Show Cause. Koffler stated that from 15 October
through 30 November 1986 he was outside the
State of California and unable to meet with his at-
torney and that, to the best of his knowledge, none
of the other named Respondents or principals of
the Company had knowledge of any matters men-
283 NLRB No. 113
BENIKISER ELECTRIC
tioned in the complaint. Nichols essentially reiterat-
ed the contentions made in the Respondent's re-
sponse and further stated that, except for the com-
plaint, no notices or documents sent by the Board
by certified mail regarding this case had been re-
ceived by his office. In this regard, Nichols' decla-
ration requested that the General Counsel produce
"any such alleged registered notices."'
The Respondent's mailgram answer does not
meet the specificity and service requirements of
Sections 102.20 and 102.21 of the Board's Rules.
Moreover, the Respondent's assertion that it suffi-
ciently complied with the' Board's Rules in view of
the fact that its principal, owner was not available
in November 1986 -fails to explain why the Re-
spondent failed to file an adequate answer by 9
January 1987 and therefore does not constitute
good cause within the. meaning of-Section 102.20 of
the Board's Rules. See Electro-Mechanical Indus-
tries, 261 NLRB 467,468 (1982).
Accordingly, in view of the Respondent'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.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a California partnership with
an office and place, of business in San Leandro,
California, has been engaged- in the sale and repair
of electrical motors and pumps, During the year
preceding the issuance of the complaint, a repre-
sentative period, the Respondent,'in the course and
conduct of its business operations, purchased and
received '-goods or services valued in excess of
$50,000 directly from suppliers located outside the
State of California. 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
i In the General Counsel 's response to the Respondent 's response to
the Notice to Show Cause, the General Counsel submitted a photocopy
of an envelope sent by certified mail from the Regional Office to the Re-
spondent's counsel Nichols on 31 December 1986. The envelope indicates
that on at least two occasions-2 and 7 January 1987-the Postal .Service
notified Nichols that a certified letter had been sent to him, and that the
letter was subsequently returned to the Regional Office as unclaimed. In
light of the Respondent's request for production of the Board documents
sent by certified mail, we grant the General Counsel's unopposed motion
to accept the response to the Respondent 's response only to the extent of
this submission. In any event, we note that the Respondent in its response
to the Notice to Show Cause does not dispute the occurrence or sub-
stance of the 6 January 1987 telephone, conversation with the Regional
Office.
749
the Union is a labor organization within the mean-
ing 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 Working Foremen, Shop Journeymen
"AA," Trouble Shooters, Shop Journeymen
"A," Shop Journeymen "B," Tool Storeroom
Keeper, Shop Coil Winder and Fractional
Horsepower Motor Repairmen, Shop Labor-
ers, Shop Helpers, Apprentices, M &, F Jour..
neymen "A," M & F Journeymen "B," M & F
Journeymen "C," M & F Coil Winder "A," M
& F Coil Winder "B," M &F Coil Winder
"C," M & F Laborers "A," M & F Laborers
"B," and M & F Laborers "C" employed by
Respondent at its San Leandro, California fa-•
cility; excluding all other employees, including
clerical employees, supervisors, and guards, as
defined in the Act.
Since at least 1978 and at all times material
herein 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 was effective
for the period 1 May 1984 to 30 April 1986.
Since at least 22 February 1986, and continuing
to date the Respondent has failed and refused to
make monthly contributions to various trust funds
on behalf of unit employees, as required by the col-
lective-bargaining agreement. The Respondent has
engaged in such conduct during the term of the
agreement and without prior notice to the Union,
without having afforded the Union an opportunity
to bargain as the exclusive representative of unit
employees with respect to the conduct and its ef-
fects, and without the consent of the Union, Addi-
tionally, about 28 February 1986 the Respondent
withdrew recognition from, the Union as the collec-
tive-bargaining representative of the unit employ-
ees.
Based on. the above, we find that the Respondent
has, since 22 February 1986, refused to bargain col-
lectively and in good faith with the Union as the
exclusive representative of the unit employees in
violation of Section 8(a)(5) and (1) of the Act.
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. By unilaterally failing and refusing to make
monthly contributions to various trust funds, as re-
quired by the collective-bargaining agreement, the
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
2. By withdrawing recognition from the Union
as the collective-bargaining representative of em-
ployees in the unit, the Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
3. By the aforesaid conduct, the Respondent has
interfered with, restrained, and coerced the unit
employees in the exercise of the rights guaranteed
them by Section 7 of the Act and has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and 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
the unit employees by paying contributions to the
trust funds, as provided in the collective-bargaining
agreement, which have not been paid,2 and by re-
imbursing unit employees for any expenses ensuing
from the Respondent's failure to make such re-
quired payments as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981). All payments to employees
shall be made with interest as prescribed in Florida
Steel Corp., 231 NLRB 651 (1977). We also shall
order the Respondent to bargain on request with
the Union as the exclusive representative of the
unit employees on terms and conditions of employ-
ment and, if an understanding is reached, embody
the understanding in a signed agreements
8 Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide for interest at a fixed rate
on fund payments due as part of a "make-whole" remedy. We therefore
leave to further proceedings the question of any additional amount the
Respondent must pay into the benefit fund in order to satisfy our "make-
whole" remedy. These additional amounts may be determined, depending
upon the circumstances of each case, by reference to provisions in the
documents governing the fund at issue and , where there are no governing
provisions, to evidence of any loss directly attributable to the unlawful
action, which might include the loss of return on investment of the por-
tion of funds withheld, additional administrative costs, etc., but not col-
lateral losses. See Merryweather Optical Co, 240 NLRB 1213, 1216 fn. 7
(1979).
8 The General Counsel has requested the inclusion of a visitatorial
clause in the Order. A visitatonal clause authorizes the Board, for com-
pliance purposes , in obtain discovery from the Respondent under the
Federal Rules of Civil Procedure under the supervision of the United
States court of appeals enforcing the Board's Order. Under the circum-
ORDER
The National Labor Relations Board orders that
the Respondent, Charles Koffler, Lari Koffler,
Steve Ferriea, Wilbert Boepple, Ben Gantt and
Frank Wong, A Partnership, d/b/a Benkiser Elec-
tric, San Leandro, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally failing and refusing to make
monthly contributions to various trust funds on
behalf of unit employees as required by the collec-
tive-bargaining agreement.,
(b) Withdrawing recognition from International
Brotherhood of Electrical Workers, Local 595 as
the collective-bargaining representative of employ-
ees in the unit.
(c) 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) Make its employees whole by paying all trust
fund contributions, as provided in -the collective-
bargaining agreement , which have not been paid,
and by reimbursing unit 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.
(b) On request, recognize and bargain with the
Union as the exclusive representative of the em-
ployees in the following appropriate unit on terms
and conditions of employment and, if- an under-
standing is reached, embody the understanding in a
signed agreement:
All Working Foremen, Shop Journeymen
"AA," Trouble Shooters, Shop Journeymen
"A," Shop Journeymen "B," Tool Storeroom
Keeper, Shop Coil Winder and Fractional
Horsepower Motor Repairmen, Shop Labor-
ers, Shop Helpers, Apprentices, M & F Jour-
neymen "A," M &F Journeymen "B," M4 F
Journeymen "C," M & F Coil Winder "A," M
& F Coil Winder "B," M & F Coil Winder
"C," M & F Laborers "A," M &F Laborers
"B," and M & F Laborers "C" employed by
Respondent at its San Leandro, California fa-
cility; excluding all other employees, including
clerical employees, supervisors, and guards, as
defined in the Act.
stances of this case , we find it unnecessary to include such a clause. Ac-
cordingly, we deny the General Counsel's request.
BENKISER ELECTRIC
(c) Post at its facility in San Leandro, California,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 32, 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:
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has, taken to comply.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted byOrder of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Eiiforcmg an Order 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 ordered us to post and abide by this notice.
WE WILL NOT unilaterally fail and refuse to
make monthly contributions to various trust funds
on behalf of unit employees as required by our col-
lective-bargaining agreement.
WE WILL NOT withdraw recognition from Inter-
national Brotherhood of Electrical Workers, Local
751
595 as the' collective-bargaining, representative of
employees in the unit.
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 make our employees whole by paying
all trust fund contributions, as provided in the col-
lective-bargaining agreement effective 1 May 1984
through 30 April 1986, which have not been paid,
and by reimbursing our unit employees, plus inter-
est, for any expenses ensuing , from our unlawful
failure to make such required payments.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All, Working Foremen, Shop Journeymen
"AA," Trouble Shooters, Shop Journeymen
"A," Shop Journeymen "B," Tool Storeroom
Keeper, Shop CoilWinder and, Fractional
Horsepower Motor Repairmen, Shop Labor-
ers, Shop Helpers, Apprentices, M & F Jour-
neymen "A," M & F Journeymen "B,'" M & F
Journeymen "C," M & F Coil Winder "A," M
& F Coil Winder "B," M& F Coil Winder
"C," 'M; & F Laborers "A," M & F Laborers
"B," and' M & F- Laborers "C" employed by
us at our San Leandro, California faciility; ex-
cludingall other employees, including clerical
employees, supervisors, and guards, as defined
in the Act.
CHARLES KOFFLER, ' LARI KOFFLER,
STEVE FERRIEA, WILBERT BOEPPLE,
BEN GANTT AND FRANK WONO, A
PARTNERSHIP, D/B/A BENKISER
ELECTRIC ' -