Contractors Excavating, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1984

270 N.L.R.B. 1189 (N.L.R.B. 1984)

CONTRACTORS EXCAVATING, INC.
Contractors Excavating, Inc. and Construction, Pro-
duction & Maintenance Laborers' Union, Local
No. 383, Laborers' International Union of
North America, AFL-CIO; International Union
of Operating Engineers, Local No. 428, AFL-
CIO; Arizona State District Council of Carpen-
ters, United Brotherhood of Carpenters & Join-
ers of America, AFL-CIO; Construction &
Joiners of America, AFL-CIO; Construction,
Building Materials & Miscellaneous Drivers,
Teamsters Local Union No. 83, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 28-
CA-7345
14 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Unions 18 February
1983 the General Counsel of the National Labor
Relations Board issued a complaint 5 April 1983
against the Company, the Respondent, alleging that
it had violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act. The General Counsel
properly served copies of the charge and complaint
on the Company. Subsequent to service of the
complaint, the Respondent requested from the Re-
gional Director for Region 28, and did in fact re-
ceive from the Regional Director, five separate ex-
tensions of time in which to file an answer to the
complaint. The latest extension of time in which
the Respondent could file an answer to the com-
plaint expired 12 July 1983. However, the Re-
spondent refused and failed to file an answer to the
complaint with the Regional Director by 12 July
1983. On 9 September 1983 the General Counsel
by letter advised the Respondent that it had failed
to file a timely answer to the complaint as required
by the Board's Rules and Regulations and informed
the Respondent of the consequences of its failure to
file a timely answer. The General Counsel request-
ed the Respondent to file an answer to the com-
plaint no later than 16 September 1983 and indicat-
ed that if the Respondent failed to file an answer
by that date the General Counsel would recom-
mend that a Motion for Summary Judgment be
filed with the Board. On 21 September 1983 the
Regional Director received an unsigned and undat-
ed document entitled "Answer to Complaint,"
which purported to be the Respondent's answer.
On 10 November 1983 the General Counsel by
letter notified the Respondent that its answer was
not signed and dated, and thus did not conform to
Section 102.21 of the Board's Rules and Regula-
270 NLRB No. 158
tions. The General Counsel informed the Re-
spondent that Section 102.21 of the Board's Rules
and Regulations allowed for striking an answer if it
were not signed. The letter also indicated that a
copy of Sections 102.20 and 102.21 of the Board's
Rules and Regulations were being enclosed with
the letter for the Respondent's convenient refer-
ence. The General Counsel advised the Respondent
that unless Region 28 received a signed and dated
answer by 17 November 1983 the General Counsel
would move before the Board to strike the Re-
spondent's answer and to grant a Motion for Sum-
mary Judgment in this proceeding. It appears that
the Company failed to file an answer in conform-
ance with the General Counsel's request.
On 23 November 1983 the General Counsel filed
a Motion for Summary Judgment. On 28 Novem-
ber 1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. Be-
cause not all parties had received the order trans-
ferring the proceeding to the Board and the Notice
to Show Cause issued 28 November 1983, the
Board issued additional copies of its order and
notice and extended the due date for the response
to the Notice to Show Cause. The Board's order
transferring proceeding to the Board and Notice to
Show Cause was thereafter personally served on
the Respondent's president at the Respondent's
business address.2 The Company filed no response.
The allegations in the motion are therefore undis-
puted.
The National Labor Relations 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 10 days from service of complaint, unless
good cause is shown. The complaint states that
unless an answer is filed within 10 days of service,
"all of the allegations in the complaint shall be
deemed to be admitted to be true and shall be so
found by the Board." Section 102.21 of the Board's
Rules and Regulations provides, "[a] party who is
not represented by an attorney shall sign his
answer and state his address. .... If an answer is
not signed or is signed with intent to defeat the
purpose of this rule, it may be stricken as sham and
I The General Counsel also informed the Respondent that Sec. 102.21
required the Respondent to serve a copy of the answer on the other par-
ties to this proceeding.
I This finding is based on the unopposed assertion contained in an affi-
davit filed with the Board.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
false and the action may proceed as though the
answer had not been served." The undisputed alle-
gations in the Motion for Summary Judgment dis-
close that the General Counsel, by letter dated 10
November 1983, notified the Company that unless
a timely and adequate answer to the complaint
which conformed to the Board's Rules and Regula-
tions was received by 17 November 1983, a Motion
for Summary Judgment would be filed. No answer
was forthcoming, and such a motion was filed.
With regard to the Respondent's "answer," we
shall strike it. After the Respondent had received
the charge and complaint, it was repeatedly
warned and advised that unless a proper answer
was filed with the Regional Director for Region
28, a motion would be filed with the Board for
entry of an order based on the undenied allegations
of the complaint. The Respondent did not file a
signed answer.
The Board has the authority under the Act to es-
tablish reasonable procedural rules regarding the
time and manner of filing an answer to a com-
plaint. See Section 6 of the Act. Pursuant to this
provision, the Board has promulgated rules regard-
ing the filing of an answer to a complaint, includ-
ing the requirement that such an answer be filed
within a definite period and that it be signed.
Accordingly, we find that, pursuant to the au-
thority granted the Board under the Act, the
Board's rules governing the filing of answers to a
complaint are valid and have the force and effect
of law. We affirm our rules that, if a party charged
with an unfair labor practice in a complaint does
not file an answer within the time and in the
manner prescribed by such rules, all allegations in
the complaint shall be deemed to be admitted to be
true and may be so found by the Board, and judg-
ment may be rendered on the basis of the com-
plaint alone. 3 We find that the Respondent's pur-
ported answer is improper, and does not comply
with the requirements of Section 102.21 of the
Board's Rules and Regulations. In the absence of
good cause being shown for the failure to file a
proper timely answer, we will strike the answer.
As the Respondent has not filed an answer ac-
ceptable under the Board's Rules and Regulations,
and in the absence of good cause being shown for
the failure to do so, we grant the General Coun-
sel's motion for Summary Judgment. 4
s Liquid Carbonic Corp., 116 NLRB 795, 797 (1956).
4 In granting the General Counsel's Motion for Summary Judgment,
Chairman Dotson specifically relies on the total failure of the Respondent
to contest the General Counsel's factual allegations or legal conclusions.
Thus, the Chairman regards this proceeding as essentially a default judg-
ment which is without precedential value.
On the entire record the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Company is an Arizona corporation, en-
gaged as a pipeline construction contractor in the
building and construction industry at its facility in
Phoenix, Arizona, where in the 1-year period pre-
ceding issuance of the complaint, the Respondent
purchased and received business goods and materi-
als valued in excess of $50,000 directly from suppli-
ers located in States of the United States other than
the State of Arizona. We find that the Company is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and
that the Unions are labor organizations within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following units of employees of the Re-
spondent constitute units appropriate for collective-
bargaining purposes within the meaning of Section
9(b) of the Act:
(a) All carpenter employees as described in arti-
cles 1 and 2 of the current Associations Agree-
ment5 between the parties, effective from 22
March 1982 through 31 January 1986.
(b) All laborer employees as described in article
1 and 2 of the parties' most recent collective-bar-
gaining agreement, the Arizona Heavy and High-
way Labor Agreement (the Arizona Agreement),
effective by its terms 7 July 1982 through 31 Janu-
ary 1986.
(c) All operating engineers as described in arti-
cles 1 and 2 of the current Arizona Agreement be-
tween the parties, effective by its terms from 7 July
1982 through 31 January 1986.
(d) All teamster employees as described in arti-
cles I and 2 of the current Arizona Agreement be-
tween the parties, effective by its terms from 7 July
1982 through 31 January 1986.
At all times material herein, the respective
Charging Party Unions have been the designated
exclusive bargaining representatives of the Re-
spondent's employees in the units described above,
respectively, and, by virtue of Section 9(a) of the
Act, have been and are the exclusive representa-
tives of the Respondent's employees in the respec-
tive units described above.
I The collective-bargaining agreement between the Arizona Building
Chapter, Associated General Contractors, Arizona Chapter, Associated
General Contractor (the Associations) and the Carpenters Union, which
the Respondent agreed to comply with and be bound by, is denoted the
Associations Agreement.
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CONTRACTORS EXCAVATING, INC.
About 3 December 1982 and continuing to date,
the Respondent has failed and refused to recognize
and to bargain with each of the Unions as the re-
spective exclusive bargaining representative of the
Respondent's employees in the respective units rep-
resented by the Unions with respect to rates of
pay, wages, hours of employment, and other terms
and conditions of employment. Since about 3 De-
cember 1982, and continuing to date, the Respond-
ent has repudiated and thereafter failed and refused
to adhere to and to abide by the terms of the re-
spective collective-bargaining agreements in effect
between the Respondent and the Unions by, inter
alia, unilaterally changing the wage rates of unit
employees; ceasing to make contributions on behalf
of employees to the respective fringe benefit trust
funds covering the employees; and discontinuing its
use of the Unions' respective hiring halls to pro-
cure its respective unit employees. Since about 3
December 1982 and continuing to date, the Re-
spondent has negotiated directly with individual
unit employees, bypassing the Unions, and offering
its respective unit employees employment with the
Respondent at wages, hours, and other terms and
conditions of employment other than those provid-
ed for in the respective collective-bargaining agree-
ments with the Unions. About the first week of
December 1982 the Respondent by its supervisor
and agent Michael J. Wimberg interrogated its em-
ployees concerning their union activities and
threatened employees with discharge if they solicit-
ed the aid and assistance of the Unions.
We find that by the conduct described above the
Respondent has refused to bargain collectively
with the Unions as the exclusive representatives of
the employees in the appropriate units, respective-
ly, and that by such refusal the Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act. We further find that the Respondent has inter-
fered with, restrained, and coerced employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act and that by such conduct has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Contractors Excavating, Inc. is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Arizona State District Council of Carpenters,
United Brotherhood of Carpenters & Joiners of
America, AFL-CIO; Construction, Production &
Maintenance Laborers' Union, Local No. 383, La-
borers' International Union of North America,
AFL-CIO; International Union of Operating Engi-
neers, Local No. 428, AFL-CIO; and Construc-
tion, Building Materials & Miscellaneous Drivers,
Teamsters Local Union No. 83, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America are labor organiza-
tions within the meaning of Section 2(5) of the
Act.
3. (a) All carpenter employees as described in ar-
ticles 1 and 2 of the current Associations Agree-
ment between the parties, effective from 22 March
1982 through 31 January 1986, constitute a unit ap-
propriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act.
(b) All laborer employees described in articles 1
and 2 of the parties' most recent collective-bargain-
ing agreement, the Arizona Heavy and Highway
Labor Agreement (the Arizona Agreement), effec-
tive by its terms 7 July 1982 through 31 January
1986, constitute a unit appropriate for collective-
bargaining purposes within the meaning of Section
9(b) of the Act.
(c) All operating engineers as described in arti-
cles 1 and 2 of the current Arizona Agreement be-
tween the parties, effective by its terms from 7 July
1982 through 31 January 1986, constitute a unit ap-
propriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act.
(d) All teamster employees as described in arti-
cles 1 and 2 of the current Arizona Agreement be-
tween the parties, effective by its terms from 7 July
1982 through 31 January 1986, constitute a unit ap-
propriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act.
4. By failing and refusing to recognize and to
bargain with each of the Unions as the respective
exclusive bargaining representative of its employees
in the respective units with respect to the rates of
pay, wages, hours of employment, and other terms
and conditions of employment; by repudiating and
refusing to adhere to and abide by the terms of the
respective collective-bargaining agreements in
effect between the Respondent and the Unions; by,
inter alia, unilaterally changing wage rates of em-
ployees, ceasing to make contributions on behalf of
said employees to respective fringe benefit trust
funds covering employees, and discontinuing its use
of the Unions' respective hiring halls to procure re-
spective unit employees; and by negotiating direct-
ly with individual unit employees, bypassing the
Unions, and offering respective unit employees em-
ployment at wages, hours, and other terms and
conditions of employment other than those provid-
ed for in the respective collective-bargaining agree-
ments with the Unions, the Company has engaged
in unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By interrogating its employees concerning
their union activities and by threatening employees
with discharge if they solicit the aid and assistance
of the Unions, the Company has engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are 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 certain unfair labor practices, we shall order the
Respondent to cease and desist and to take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by failing to recog-
nize and bargain with each of the Unions, we shall
order that the Respondent, on request, bargain col-
lectively with the Unions as the exclusive bargain-
ing representatives of the employees in the appro-
priate units, respectively, with respect to wages,
hours, and other terms and conditions of employ-
ment. Having found specifically that the Respond-
ent repudiated and failed and refused to adhere and
abide by the terms and conditions of the respective
collective-bargaining agreements in effect between
the Respondent and the Unions by, inter alia, uni-
laterally changing wage rates of employees, ceasing
to make contributions on behalf of said employees
to fringe benefit trust funds, and discontinuing use
of the Unions' respective hiring halls to procure its
respective unit employees, we shall order that the
Respondent restore the status quo ante and give
effect to and comply with the terms and conditions
set forth in said agreements. We shall also order
the Respondent to make employees whole for any
monetary losses they may have suffered as a result
of the Respondent's refusal to comply with the
provisions of the contract, retroactive to 3 Decem-
ber 1982, with interest provided for in Florida Steel
Corp., 231 NLRB 651 (1977).6 We shall also order
the Respondent to make contributions to the re-
spective fringe benefit trust funds covering the em-
ployees, 7 and to use the Unions' respective hiring
halls to procure its respective unit employees. We
shall also order the Respondent to cease and desist
from negotiating directly with individual unit em-
ployees, bypassing the Unions, and offering respec-
tive unit employees employment with the Respond-
e See generally Isis Plumbing Co., 138 NLRB 716 (1962), and Ogle Pro-
tection Service, 183 NLRB 682 (1970).
7 Any interest applicable to such payments shall be paid in accordance
with the criteria set forth in Merrywearher Optical Co., 240 NLRB 1213
(1979).
ent at wages, hours, and other terms and conditions
of employment other than those provided in the re-
spective collective-bargaining agreements with the
Unions. We shall further order the Respondent to
cease and desist from interrogating employees con-
cerning their union activities, and from threatening
employees with discharge if they solicit the aid and
assistance of the Unions.
ORDER
The National Labor Relations Board orders that
the Respondent, Contractors Excavating, Inc.,
Phoenix, Arizona, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing to abide by the terms and conditions
set forth in collective-bargaining agreements with
the Unions.
(b) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with (1) Arizona State
District Council of Carpenters, United Brother-
hood of Carpenters & Joiners of America, AFL-
CIO; (2) Construction, Production & Maintenance
Laborers' Union, Local No. 383, Laborers' Interna-
tional Union of North America, AFL-CIO; (3)
International Union of Operating Engineers, Local
No. 428, AFL-CIO; and (4) Construction, Building
Materials & Miscellaneous Drivers, Teamsters
Local Union No. 83, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America as the exclusive bargaining representa-
tives of its employees in the following appropriate
units, respectively:
(1) All of the Respondent's carpenter employees
as described in articles 1 and 2 of the current Asso-
ciations Agreement between the parties, effective
from 22 March 1982 through 31 January 1986.
(2) All of the Respondent's laborer employees as
described in articles 1 and 2 of the current Arizona
Agreement between the parties, effective by its
terms from 7 July 1982 through 31 January 1986.
(3) All of the Respondent's operating engineers
as described in articles I and 2 of the current Ari-
zona Agreement between the parties, effective by
its terms from 7 July 1982 through 31 January
1986.
(4) All of the Respondent's teamster employees
as described in articles I and 2 of the current Ari-
zona Agreement between the parties, by its terms
from 7 July 1982 through 31 January 1986.
(c) Unilaterally changing the wage rates of em-
ployees, ceasing to make contributions on behalf of
employees to fringe benefit trust funds covering
employees, and discontinuing use of the Unions'
hiring halls to procure employees.
1192
CONTRACTORS EXCAVATING, INC.
(d) Negotiating directly with individual unit em-
ployees, bypassing the Unions, and offering unit
employees employment at wages, hours, and other
terms and conditions of employment other than
those provided for in the collective-bargaining
agreements with the Unions.
(e) Interrogating its employees concerning union
activities.
(f) Threatening employees with discharge if they
solicit the aid and assistance of the Unions.
(g) 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 which
the Board finds will effectuate the policies of the
Act.
(a) On request, bargain with the above-named
labor organizations as the exclusive representatives
of employees in the aforesaid appropriate units, re-
spectively, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment.
(b) Honor the terms and conditions of employ-
ment set forth in the collective-bargaining agree-
ments with the above-named labor organizations.
(c) Make whole all employees in the above-de-
scribed appropriate units in the manner set forth in
the section of this decision entitled "Remedy" by
reimbursing them, with interest, for any loss of
wages they may have suffered as a result of the
Respondent's failure, since about 3 December 1982,
to abide by the terms of the collective-bargaining
agreements regarding rates of pay and wages.
(d) Make whole all employees by making pay-
ments to the respective fringe benefit trust funds
covering the employees as set forth in the section
of this decision entitled "Remedy."
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all the records necessary or useful in checking
compliance with this Order.
(f) Post at its facility in Phoenix, Arizona, copies
of the attached notice marked "Appendix. " s
Copies of the notice, on forms provided by the Re-
gional Director for Region 28, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
8 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail to abide by the terms and
conditions of employment set forth in the collec-
tive-bargaining agreements with Contractors Exca-
vating, Inc. and Arizona State District Council of
Carpenters, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO; Construction, Pro-
duction & Maintenance Laborers' Union, Local
No. 383, Laborers' International Union of North
America, AFL-CIO; International Union of Oper-
ating Engineers, Local No. 428, AFL-CIO; and
Construction, Building Materials and Miscellaneous
Drivers, Teamsters Local Union No. 83, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America with re-
spect to our employees in the following appropri-
ate units:
All carpenter employees as described in Arti-
cles I and 2 of the current Associations Agree-
ment between the parties effective from 22
March 1982 through 31 January 1986.
All laborer employees as described in Articles
1 and 2 of the current Arizona Agreement be-
tween the parties, effective by its terms 7 July
1982 through 31 January 1986.
All operating engineers as described in Arti-
cles I and 2 of the current Arizona Agreement
between the parties, effective by its terms from
7 July 1982 through 31 January 1986.
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with the above-
named Unions in the units described above.
WE WILL NOT unilaterally change the wage rates
of employees, cease to make contributions on
behalf of employees to fringe benefit trust funds
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covering employees, or discontinue use of the
Unions' hiring halls to procure our employees.
WE WILL NOT negotiate directly with individual
unit employees, bypass the Union, or offer respec-
tive unit employees employment with us at wages,
hours, and other terms and conditions of employ-
ment other than those provided for in the collec-
tive-bargaining agreement with the Unions de-
scribed above.
WE WILL NOT interrogate employees concerning
their union activities.
WE WILL NOT threaten employees with dis-
charge if they solicit the aid or assistance of the
Unions.
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, on request, bargain with the above-
named labor organizations as exclusive representa-
tives of employees in the respective bargaining
units described above with respect to rates of pay,
wages, hours, and other terms and conditions of
employment.
WE WILL restore the employees' terms and con-
ditions of employment as they existed prior to the
unilateral changes specified above.
WE WILL make whole all employees in the ap-
propriate units by reimbursing them and making
payments to the respective fringe benefit trust
funds, with interest, for any losses ensuing from
our unilateral changes.
CONTRACTORS EXCAVATING, INC.
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