John Henley Caulking & Waterproofing Co.

National Labor Relations Board - Board Decisions

Sep 21, 1994

314 N.L.R.B. 1232 (N.L.R.B. 1994)

1232
314 NLRB No. 199
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All subsequent dates refer to 1994 unless otherwise specified.
John Henley Caulking and Waterproofing Co. and
Pointers, Cleaners and Caulkers, Local 35 a/w
Bricklayers and Allied Craftsmen International
Union. Case 4–CA–22224
September 21, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS DEVANEY
AND BROWNING
Upon a charge filed by Pointers, Cleaners and
Caulkers, Local 35 a/w Bricklayers and Allied Crafts-
men International Union (the Union) on November 5,
1993, the Acting General Counsel of the National
Labor Relations Board issued a complaint on February
17, 1994,1 against John Henley Caulking and Water-
proofing Co. (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 an
answer.
As no timely answer was filed and no extension of
time to answer was requested or granted before the due
date, the General Counsel filed a Motion for Summary
Judgment with the Board on June 13. On June 16, 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 re-
sponse.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated May 17, notified
the Respondent that unless an answer was received by
May 24, a Motion for Summary Judgment would be
filed with the Board. No answer was received by the
Regional Office by that date, and the Respondent did
not request an extension of time for filing an answer.
Accordingly, the General Counsel filed with the Board
the Motion for Summary Judgment on June 13. On
June 16, the Board issued the Notice to Show Cause
why the General Counsel’s Motion for Summary Judg-
ment should not be granted. Thereafter, by letter to
counsel for the General Counsel dated June 27 and re-
ceived by the Region on July 5, the Respondent apolo-
gized for its ‘‘failure to respond in a timely manner to
the Complaint.’’ The letter continued, ‘‘It has been a
very demanding year for me with a seemingly endless
stream of problems, and this was simply something
that I mistakenly overlooked.’’ The letter does not
deny the material allegations of the complaint. Rather,
it attempts to explain why the Respondent engaged in
the allegedly unlawful conduct. The Respondent re-
quested that the unfair labor practice hearing be held.
On July 21, the General Counsel filed a response to
the Respondent’s letter. The General Counsel contends
the letter provides inadequate excuse to avoid sum-
mary judgment, is inadequate to serve as an answer,
and provides no defense to the complaint allegations.
The Respondent’s letter does not satisfy the require-
ment of the Board’s Rules that good cause be shown
for the failure to file a timely and proper answer. The
Respondent offers no sufficient explanation for its fail-
ure to act for more than a month after the extended
deadline for filing a timely answer. Further, the Re-
spondent’s letter is insufficient as an answer to the al-
legations of the complaint.
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.
H & D Trucking, 297 NLRB 543 (1990).
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a
Pennsylvania corporation engaged in the business of
caulking and waterproofing, with a facility located in
Trevose, Pennsylvania. During the 12-month period
preceding the issuance of the complaint, the Respond-
ent, in conducting its business operations, performed
services valued in excess of $50,000 outside the Com-
monwealth of Pennsylvania. We find that the Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and
that 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 (the
unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All pointers, cleaners and caulkers employed by
Respondent, excluding guards and supervisors as
defined in the Act.
1233JOHN HENLEY CAULKING & WATERPROOFING CO.
2 In the absence of any need to determine in this proceeding
whether the parties’ relationship is governed by Sec. 9 or by Sec.
8(f), Member Browning would not reach that issue.
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.’’
About September 1993, the Respondent, an em-
ployer engaged in the building and construction indus-
try, granted recognition to the Union as the exclusive
collective-bargaining representative of the unit by
agreeing to enter into a collective-bargaining agree-
ment with the Union for the period from about Sep-
tember 1993 to about August 31, without regard to
whether the majority status of the Union has ever been
established under the provisions of Section 9 of the
Act.
For the period from about September 1993 to about
August 31, pursuant to Section 8(f) and Section 9(a)
of the Act, the Union has been the limited exclusive
bargaining representative of the unit.2
About September 1993, the Union and the Respond-
ent reached complete agreement on terms and condi-
tions of employment of the unit to be incorporated in
a collective-bargaining agreement.
Since about September 1993, the Union has re-
quested that the Respondent execute a written contract
containing the above agreement. Since about the same
date, however, the Respondent has failed and refused
to execute the agreement.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has failed and refused to bargain collectively
and in good faith with the limited exclusive collective-
bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
(5), Section 8(d), and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unair 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, having found that the Respondent has failed and
refused to execute a written contract containing the
agreement it reached with the Union about September
1993, we shall order the Respondent, on request, to
execute the agreement and apply the terms of the
agreement retroactively from its effective date, making
unit employees whole for any loss of earnings and
other benefits attributable to its unlawful conduct.
Backpay shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that the
Respondent, John Henley Caulking and Waterproofing
Co., Trevose, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
Pointers, Cleaners and Caulkers, Local 35 a/w Brick-
layers and Allied Craftsmen International Union, as the
limited exclusive collective-bargaining representative
of the employees in the following unit, by failing and
refusing to execute a written contract containing the
agreement it reached with the Union about September
1993:
All pointers, cleaners and caulkers employed by
Respondent, excluding guards and supervisors as
defined in the Act.
(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) On request, execute the agreement it reached
with the Union about September 1993, and apply the
terms of that agreement retroactively to all unit em-
ployees from its effective date.
(b) Make the unit employees whole or any loss of
wages and other benefits due to its failure to execute
the agreement it reached with the Union about Sep-
tember 1993, with interest, as 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 annount of backpay
due under the terms of this Order.
(d) Post at its facility in Trevose, Pennsylvania, cop-
ies of the attached notice marked ‘‘Appendix.’’3 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced, or covered by any other material.
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(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 fail and refuse to bargain in good
faith with Pointers, Cleaners and Caulkers, Local 35
a/w Bricklayers and Allied Craftsmen International
Union, as the limited exclusive collective-bargaining
representative of the employees in the following unit,
by failing and refusing to execute a written contract
containing the agreement we reached with the Union
about September 1993:
All pointers, cleaners and caulkers employed by
Respondent, excluding guards and supervisors as
defined in the Act.
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, execute the agreement we
reached with the Union about September 1993, and
apply the terms of that agreement retroactively to all
unit employees from its effective date.
WE WILL make unit employees whole for any loss
of wages and other benefits due to our failure to exe-
cute the agreement we reached with the Union about
September 1993, with interest.
JOHN HENLEY CAULKING AND WATER-
PROOFING CO.