Joseph E. Sucher & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 2004

342 N.L.R.B. 52 (N.L.R.B. 2004)

342 NLRB No. 52
Joseph E. Sucher & Sons, Inc. and International Un-
ion of Operating Engineers, Local 542, AFL–
CIO. Case 4–CA–32861
July 27, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by the
Union on March 2, 2004, the General Counsel issued the
complaint on April 9, 2004, against Joseph E. Sucher &
Sons, Inc., the Respondent, alleging that it has violated
Section 8(a)(5) and (1) of the Act. The Respondent
failed to file an answer.
On May 25, 2004, the General Counsel filed a Motion
for Default Judgment with the Board. On June 4, 2004,
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 allegations in the motion are therefore un-
disputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default 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. In addition, the complaint affirmatively stated
that unless an answer was filed by April 23, 2004, all the
allegations in the complaint would be considered admit-
ted. Further, the undisputed allegations in the General
Counsel’s motion disclose that the Region, by letter
dated May 7, 2004, notified the Respondent that unless
an answer was received by May 14, 2004, a motion for
default judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s motion for default judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Pennsylvania
corporation with a facility at 1177 East 9th Street, Ed-
dystone, Pennsylvania, (the facility) has been engaged as
a paving contractor in the building and construction in-
dustry.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, purchased and received at
the facility goods valued in excess of $50,000 directly
from points outside the Commonwealth of Pennsylvania.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that International Union of Operating
Engineers, Local 542, AFL–CIO (the Union) is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Joseph E. Sucher, the Respon-
dent’s president, has been a supervisor of the Respondent
within the meaning of Section 2(11) of the Act, and an
agent of the Respondent within the meaning of Section
2(13) of the Act.
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:

All full-time and regular part-time equipment operators
and equipment mechanics employed by Respondent at
the facility, but excluding all other employees, laborers,
drivers, guards and supervisors as defined in the Act.

On January 6, 2004, the Union was certified as the ex-
clusive collective-bargaining representative of the unit.
At all times since January 6, 2004, based on Section
9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the unit.
Since on or about January 12, 2004, the Union has re-
quested that the Respondent meet and bargain with the
Union concerning the wages, hours, and other terms and
conditions of employment of the Unit.
Since on or about January 12, 2004, the Respondent
has failed and refused to meet and bargain with the Un-
ion concerning the wages, hours, and other terms and
conditions of employment of the unit.
On or about January 12, 2004, the Union, by letter, re-
quested that the Respondent furnish the Union with the
following information:

(a) A list of current employees including their
names, dates of hire, rates of pay, job classification,
last known address, phone number, date of comple-
tion of any probationary period, and any records of
discipline;
(b) A copy of all current company personnel
policies, practices or procedures;
(c) A statement and description of all company
personnel policies, practices or procedures that are
not provided under letter b above;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
(d) A copy of all company fringe benefit plans
(including the plan document and summary plan de-
scription) including pension, profit sharing, sever-
ance, stock incentive, vacation, health and welfare,
apprenticeship, training, legal services, child care or
any other plans which relate to the employees;
(e) Copies of all current job descriptions;
(f) Copies of any company wage or salary plans;
(g) Copies of all disciplinary notices, warnings,
or records of disciplinary personnel actions for the
last year; and
(h) A statement and description of all wage and
salary plans that are not provided under letter f
above.

The information requested by the Union is necessary
for and relevant to the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit.
Since on or about January 12, 2004, the Respondent
has failed and refused to furnish the Union with the in-
formation requested.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting com-
merce within the meaning 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 cer-
tain 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. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) by failing and refusing since on or about January
12, 2004, to meet and bargain with the Union, we shall
order the Respondent, on request, to meet and bargain in
good faith with the Union as the exclusive collective-
bargaining representative of the unit, and, if an under-
standing is reached, to embody the understanding in a
signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
In addition, we shall order the Respondent to furnish
the Union with the information it requested on or about
January 12, 2004.
ORDER
The National Labor Relations Board orders that the
Respondent, Joseph E. Sucher & Sons, Inc., Eddystone,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to meet and bargain collec-
tively and in good faith with the International Union of
Operating Engineers, Local 542, AFL–CIO, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following unit:

All full-time and regular part-time equipment operators
and equipment mechanics employed by Respondent at
the facility, but excluding all other employees, laborers,
drivers, guards and supervisors as defined in the Act.
(b) Failing and refusing to provide the Union with in-
formation that is relevant and necessary to the perform-
ance of its duties as the exclusive collective-bargaining
representative of the unit employees.
(c) In any like or related manner interfering with, re-
straining, 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, meet and bargain with the Union as the
exclusive collective-bargaining representative of the unit
employees on terms and conditions of employment and,
if an understanding is reached, embody the understand-
ing in a signed agreement.
(b) Furnish to the Union the information it requested
on or about January 12, 2004.
(c) Within 14 days after service by the Region, post at
its facility in Eddystone, Pennsylvania, copies of the at-
tached notice marked “Appendix.”1 Copies of the notice,
on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al-

1 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JOSEPH E. SUCHER & SONS 3
tered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since January 12,
2004.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.

WE WILL NOT fail and refuse to meet and bargain col-
lectively and in good faith with the International Union
of Operating Engineers, Local 542, AFL–CIO, as the
exclusive collective-bargaining representative of the em-
ployees in the following unit:

All full-time and regular part-time equipment operators
and equipment mechanics employed by us at our facil-
ity, but excluding all other employees, laborers, drivers,
guards and supervisors as defined in the Act.

WE WILL NOT fail and refuse to provide the Union with
information that is relevant and necessary to the per-
formance of its duties as the exclusive collective-
bargaining representative of the unit employees.
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, meet and bargain with the Union
as the exclusive collective-bargaining representative of
the unit employees on terms and conditions of employ-
ment, and put in writing and sign any agreement reached.
WE WILL furnish the Union the information it re-
quested on or about January 12, 2004.
JOSEPH E. SUCHER & SONS, INC.