Frank J. Foronjy Electric Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 486 (N.L.R.B. 1991)

486
304 NLRB No. 60
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See U.S. Telefactors Corp., 293 NLRB 567 (1989) (the combination of a
possible settlement, the illness of one of the respondent’s attorneys, and the
unusually heavy workload of the respondent’s attorneys, does not constitute
good cause for the failure to file a timely answer).
2 Father & Sons Lumber, 297 NLRB 47 (1989).
Frank J. Foronjy & Sons Electric Corp. and Local
25, International Brotherhood of Electrical
Workers, AFL–CIO. Case 29–CA–15234
August 27, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
Upon a charge filed by the Union on October 1,
1990, the General Counsel of the National Labor Rela-
tions Board issued a complaint and notice of hearing
on February 27, 1991, against Frank J. Foronjy & Sons
Electric Corp., the Respondent, alleging that it has vio-
lated Section 8(a)(1) and (5) of the National Labor Re-
lations Act. Although properly served copies of the
charge and complaint, the Respondent failed to file a
timely answer.
On May 20, 1991, the General Counsel filed a Mo-
tion for Summary Judgment. On May 23, 1991, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On June 10, 1991, the Respond-
ent filed an affidavit in opposition to the Motion for
Summary Judgment and an untimely answer which in-
cludes affirmative defenses. On June 13, 1991, the
Union filed an affidavit in support of the Motion for
Summary Judgment. On July 12, 1991, the Union filed
a reply to the Respondent’s affidavit in opposition to
the Motion for Summary Judgment.
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 complaint states that unless an answer
is filed within 14 days of service, ‘‘all the allegations
in the Complaint shall be deemed to be admitted by
it to be true and may be so found by the Board.’’
The answer to the complaint was initially due on
March 13, 1991. The undisputed allegations in the Mo-
tion for Summary Judgment disclose that, 2 weeks
after the Respondent’s failure to meet this deadline, the
General Counsel, by letter dated March 27, 1991, noti-
fied the Respondent that no answer had been received
and that unless an answer was received by April 5,
1991, a Motion for Summary Judgment would be filed.
By letter of April 4, 1991, the day before the answer
was due, the Respondent wrote to the Region asking
for an extension of 30 days. The Regional Director, by
letter dated April 5, 1991, issued an order extending
time to answer the complaint until May 6, 1991. The
Respondent did not file an answer by May 6, 1991.
The affidavit filed by the Respondent’s current attor-
ney states that he was retained to represent the Re-
spondent in this matter on May 31, 1991, that ‘‘[u]pon
information and belief’’ the Respondent’s prior attor-
ney failed to file an answer ‘‘by the new due date of
May 6, 1991, due to the failure of his law office to
properly record the new date the answer was due in
the office diary,’’ that the Respondent’s prior attorney
had been involved in a state court trial for 7 weeks
since March 18, 1991, and that the Respondent’s prior
attorney ‘‘was informed of the new date while in trial
in a telephone conversation with his office on a pay
telephone.’’
We find that the Respondent’s explanation does not
constitute good cause for its failure to file a timely an-
swer.1 Although it is incumbent upon the Respondent
to provide the Board with the specific details concern-
ing the alleged recording error,2 the attorney whose
‘‘law office’’ allegedly failed to record properly the
new due date has provided no information to us, and
no reason has been given why he is unable to supply
a statement on this matter. Further, even if we accept
as true the assertions in the Respondent’s affidavit con-
cerning an error by the ‘‘law office,’’ it is undisputed
that the Respondent’s prior attorney was personally no-
tified of the new due date. Indeed, May 6, 1991, was
the due date that he had asked for in his April 4, 1991
request for an extension of time. In sum, the Respond-
ent has not satisfactorily explained why its prior attor-
ney was unable to file a timely answer by the due date
that he had specifically requested and of which he had
been personally notified. Accordingly, in the absence
of good cause being shown for the failure to file a
timely answer, we grant the General Counsel’s Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, with its
principal office and place of business in Massapequa,
New York, provides electrical contracting and related
services. During the past year, the Respondent, in the
course and conduct of its business, has performed serv-
ices valued in excess of $50,000 for various enterprises
located in the State of New York, each of which enter-
prises, in turn, is directly engaged in interstate com-
merce and meets a Board standard of jurisdiction, ex-
clusive of indirect inflow or indirect outflow. We find
that the Respondent is an employer engaged in com-
487FRANK J. FORONJY ELECTRIC CORP.
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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
merce within the meaning of Section 2(6) and (7) of
the Act and that the Union is a labororganization with-
in the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent’s employees in the unit set forth in
the collective-bargaining agreement described below
constitute an appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act. Since about March 1984, and at all material
times, the Union has been the designated exclusive
collective-bargaining representative of the unit employ-
ees, and since that date has been recognized as the rep-
resentative by the Respondent. This recognition has
been embodied in successive collective-bargaining
agreements, the most recent of which was effective
from May 1, 1989, to April 30, 1991. At all times
since about March 1984, the Union, by virtue of Sec-
tion 9(a) of the Act, has been the exclusive representa-
tive of the unit employees for the purpose of collective
bargaining with respect to rates of pay, wages, hours,
and other terms and conditions of employment.
Since about September 6, 1990, the Union, by letter,
has requested the Respondent to furnish the Union
with various items of information set forth in 117 para-
graphs pertaining to 13 categories of documents of the
Respondent, All Island Security Systems, Inc., and
Unique Electric, Inc. The categories of documents
sought by the Union are: certificates of incorporation,
corporate officers, corporate directors, shareholders, li-
censes, addresses/phone numbers/leases, employees,
supervision, insurance, equipment, tools, financing/-
fund transfers/bonding, and customers.
On about September 27, 1990, the Union initiated a
series of grievances against the Respondent which al-
lege, in substance, that the Respondent has breached
the collective-bargaining agreement by, among other
things, failing to honor the contractual exclusive hiring
hall referral procedure; subletting, assigning and/or
transferring work within the Union’s jurisdiction to
other employers; not submitting work report forms on
that work; failing to apply contract terms to unit em-
ployees; and failing to make funds contributions to the
Union on behalf of unit employees.
The information requested by the Union is necessary
for, and relevant to, the Union’s performance of its
function as the collective-bargaining representative of
the unit employees, and the processing of the griev-
ances discussed above. The Respondent, however,
since about September 6, 1990, has failed to furnish
the information to the Union. We find that the Re-
spondent, by this conduct, has failed and refused to
bargain collectively in good faith with the representa-
tive of its unit employees in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing to furnish the Union-re-
quested information necessary and relevant for collec-
tive bargaining, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(1) and (5) 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 de-
signed to effectuate the policies of the Act.
We shall order the Respondent to furnish the Union
with the information requested in its letter dated Sep-
tember 6, 1990.
ORDER
The National Labor Relations Board orders that the
Respondent, Frank J. Foronjy & Sons Electric Corp.,
Massapequa, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union by refusing
to furnish the Union information that is relevant and
necessary to its role as the exclusive bargaining rep-
resentative of the unit employees.
(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) Upon request, furnish the information requested
by the Union in its letter of September 6, 1990.
(b) Post at its facility in Massapequa, New York,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 29, 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.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
488 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 refuse to bargain with Local 25, Inter-
national Brotherhood of Electrical Workers, AFL–CIO,
as the exclusive representative of the employees in the
bargaining unit by refusing to furnish the Union infor-
mation that is relevant and necessary to its role as the
exclusive bargaining representative of the unit employ-
ees.
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, on request, furnish the Union the informa-
tion that is relevant and necessary to its role as the ex-
clusive bargaining representative of the unit employ-
ees.
FRANK J. FORONJY & SONS ELECTRIC
CORP.