Clarence Spight Contractor

National Labor Relations Board - Board Decisions

Sep 17, 1993

312 N.L.R.B. 147 (N.L.R.B. 1993)

147
312 NLRB No. 36
CLARENCE SPIGHT CONTRACTOR
1 Accordingly, we grant the General Counsel’s motion to strike the
Respondent’s submission.
2 See John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub
nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988).
See also Ryan Heating Co., 297 NLRB 619 (1990).
Clarence Spight Equipment Leasing Company d/b/a
Clarence Spight Contractor and Eastern Mis-
souri Laborers’ District Council affiliated with
the Laborers’ International Union of North
America, AFL–CIO. Case 14–CA–22311
September 17, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by the Union on February 10,
1993, the General Counsel of the National Labor Rela-
tions Board issued a complaint on March 11, 1993,
against Clarence Spight Equipment Leasing Company
d/b/a Clarence Spight Contractor, the Respondent, al-
leging that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
The complaint alleges that the Respondent has vio-
lated the Act since about September 24, 1992, by fail-
ing to execute an 8(f) collective-bargaining agreement
containing the provisions of the collective-bargaining
agreement entered into between the Charging Party
and the Site Improvement Association. The complaint
further alleges that the Respondent failed to do so de-
spite executing an interim agreement in which it
agreed to be bound by and to execute the collective-
bargaining agreement. On March 18, 1993, counsel for
the General Counsel received from the Respondent a
copy of the complaint issued by the Regional Director,
with the words ‘‘No labors used’’ handwritten across
its face.
On March 19, 1993, counsel for the General Coun-
sel mailed to the Respondent a certified letter advising
the Respondent that its answer in its present form was
deficient because Section 102.20 of the Board’s Rules
and Regulations requires that each allegation of the
complaint be specifically admitted, denied, or ex-
plained. The letter further advised that if a sufficient
answer were not filed by close of business March 25,
1993, a Motion for Summary Judgment would be
made.
On March 21, 1993, counsel for the General Coun-
sel received a telephone call from the Respondent.
Counsel for the General Counsel again advised the Re-
spondent that, if a sufficient answer was not filed by
March 25, 1993, a Motion for Summary Judgment
would be made. The Respondent advised that it would
most likely not file an amended answer.
On April 5, 1993, counsel for the General Counsel
filed a motion to strike respondent’s answer and for
summary judgment for failure to file a sufficient an-
swer. On April 7, 1993, 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 allegations in
the motion are therefore undisputed.
Ruling on Motion to Strike and 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 complaint states 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.’’ Section
102.20 also states that an answer should specifically
admit, deny, or explain each of the facts alleged in the
complaint unless the respondent is without knowledge,
in which case it shall so state.
We agree with the General Counsel that the Re-
spondent’s purported answer, consisting of the return
of the complaint with the words ‘‘No labors used’’
handwritten across its face, does not constitute a suffi-
cient answer under the Board’s rules because it does
not admit, deny, or explain each of the allegations of
the complaint.1 Furthermore, no contention is raised by
the Respondent’s words on the returned complaint that
warrants denial of the Motion for Summary Judgment.
Even assuming, arguendo, that the Respondent is
claiming that it did not hire laborer unit employees,
that is not a defense to a failure to execute an agreed-
upon 8(f) collective-bargaining agreement.2
The undisputed allegations in the General Counsel’s
Motion for Summary Judgment disclose that the Re-
spondent was given opportunities to file a sufficient
answer to the complaint, but failed to do so. The Re-
spondent did not respond to the Notice to Show Cause,
and therefore has failed to adequately explain its fail-
ure to file a proper answer. In the absence of good
cause being shown for the failure to file a sufficient
answer, all the allegations of the complaint are deemed
to be true. Accordingly, we grant the General Coun-
sel’s Motion for Summary Judgment. On the entire
record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Missouri corporation, engaged
in the hauling of materials in the building and con-
struction industry at its St. Louis, Missouri facility.
During the 12-month period ending February 28, 1993,
the Respondent purchased and received goods valued
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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.’’
in excess of $50,000 directly from points outside the
State of Missouri. 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 organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On May 5, 1992, the Respondent, an employer en-
gaged in the building and construction industry, grant-
ed recognition to the Union pursuant to Section 8(f) of
the Act by executing an interim agreement agreeing to
execute and be bound by a collective-bargaining agree-
ment containing the provisions of any collective-bar-
gaining agreement entered into by the Site Improve-
ment Association and the Union. By the terms of the
interim agreement, the Respondent is bound by the
terms of the current collective-bargaining agreement
between the Union and the Site Improvement Associa-
tion, which is effective by its terms from May 1, 1992,
to May 1, 1996.
The unit of employees (the unit), set forth in the
collective-bargaining agreement described above is a
unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act. For
the period of May 1, 1992, to May 1, 1996, based on
Section 9(a) of the Act, the Union is the limited exclu-
sive collective-bargaining representative of the unit.
On about May 1, 1992, the Union and the Site Im-
provement Association reached complete agreement on
the terms and conditions of employment of the unit to
be incorporated in a collective-bargaining agreement
between the Union and the Respondent. Since about
September 24, 1992, the Union has requested the Re-
spondent to execute a written contract containing the
agreement described above. Since about September 24,
1992, the Respondent has failed and refused to execute
the agreement. We find that the Respondent, by the
conduct described above, has failed and refused to bar-
gain in good faith with the limited exclusive collec-
tive-bargaining representative of its employees in the
appropriate unit in violation of Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
By refusing to execute the above-described collec-
tive-bargaining agreement as requested by the Union,
the Respondent has engaged in unfair labor practices
in violation of Section 8(a)(5) and (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 the Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the poli-
cies of the Act.
Specifically, we shall order the Respondent to exe-
cute the above-described collective-bargaining agree-
ment and to make unit employees whole for any losses
they may have suffered as a result of the Respondent’s
unlawful failure and refusal to execute the agreement,
with lost earnings and interest to be computed in the
manner prescribed by Ogle Protection Service, 183
NLRB 682 (1970), and New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The Respondent, Clarence Spight Equipment Leas-
ing Company d/b/a Clarence Spight Contractor, St.
Louis, Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the East-
ern Missouri Laborers’ District Council affiliated with
the Laborers’ International Union of North America,
AFL–CIO, by failing and refusing to execute a written
contract incorporating the provisions of the collective-
bargaining agreement negotiated by the Union and the
Site Management Association.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
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 of the Union, execute the above-de-
scribed collective-bargaining agreement.
(b) Make unit employees whole, with interest, for
any loss of earnings they may have suffered by reason
of the Respondent’s failure and refusal to execute the
collective-bargaining agreement in the manner 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 offices in St. Louis, Missouri, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the attached notice, on forms provided by the Regional
Director for Region 14, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
149CLARENCE SPIGHT CONTRACTOR
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.
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 refuse to bargain in good faith with
the Eastern Missouri Laborers’ District Council affili-
ated with the Laborers’ International Union of North
America, AFL–CIO by failing and refusing to execute
a written contract incorporating the provisions of the
collective-bargaining agreement negotiated between
that Union and the Site Improvement Association.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed to you by Section 7 of the Act.
WE WILL, at the Union’s request, execute the above-
described collective-bargaining agreement.
WE WILL make unit employees whole, with interest,
for any loss of earnings they may have suffered by
reason of our failure and refusal to execute the collec-
tive-bargaining agreement between us and the Union.
CLARENCE SPIGHT EQUIPMENT LEASING
COMPANY D/B/A CLARENCE SPIGHT
CONTRACTOR