Mcintyre Engineering Co , Inc

National Labor Relations Board - Board Decisions

Apr 19, 1989

293 N.L.R.B. 716 (N.L.R.B. 1989)

716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McIntyre Engineering Co , Inc and Sheet Metal
Workers Local Union' 335, Sheet Metal Work-
ers International Union , AFL-CIO Case 20-
CA-22192
April 19, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by the Sheet Metal Workers
Local Union 335, Sheet Metal Workers Interna-
tional Union, AFL-CIO (the Union) September 9,
1988,1 the General Counsel of the National Labor
Relations Board issued a complaint October 24
against Mclntrye Engineering Co, Inc (the Re
spondent), alleging that the Respondent has violat-
ed Section 8(a)(5) and (1) and Section 8(d) of the
National Labor Relations Act by refusing to
comply with a written request of the Union to dis-
charge employees who had failed or refused to
comply with the union-security clause in the par
ties' collective bargaining agreement Although
properly served copies of the charge and com-
plaint, the Respondent has failed to file an answer
On November 25, the General Counsel filed a
Motion for Summary Judgment, with exhibits at
tached The Union later joined that motion On
December 2, 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 However, on De-
cember 2, the General Counsel filed a letter with
attachments to the Board In the letter the General
Counsel indicates that subsequent to her Motion
for Summary Judgment, the Respondent submitted
a letter to the Region in response to the complaint
The General Counsel argues that the Respondent's
letter, which is attached to her letter, is untimely,
fails as a valid answer to the complaint because it
"fails to specifically deny or explain any of the
facts alleged in the Complaint", and, to the extent
that it is viewed as an "explanation," it effectively
admits the key facts establishing the unfair labor
practice The General Counsel therefore urges that
summary judgment is still appropriate The Re
spondent filed no response to the General Coun
sel's letter
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three
member panel
' All dates are 1988 unless otherwise noted
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 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 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 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 knowl
edge in which case it shall so state
The Respondent did not initially file an answer
to the complaint as required by Section 102 20 of
the Board's Rules and Regulations According to
the undisputed allegations in the Motion for Sum
mary Judgment, by letter dated November 14, the
acting regional attorney then notified the Respond-
ent that unless an answer was received by the
Region by November 21, the General Counsel
would seek summary judgment No answer was re
ceived by the Region by that date and accordingly
the General Counsel sought summary judgment
As noted above, on November 28, the Region then
received a letter from the Respondent, dated No
vember 21 The seven-paragraph letter stated, inter
alia, that the Respondent did "not understand the
requirement for further statements prior to the
hearing An affidavit was taken by Mr Jack Marks
on October 19, 1988 which I believed was our
proper response In addition, there has been no ex
planation of our options, possible penalties, etc
which I feel we are entitled to " It then elaborated
on the Respondents financial difficulties and ex-
plained, inter alia that a number of employees had
refused to pay dues to the Union because the
Union Trust Fund had terminated their health ben
efits in response to the Respondent's financial in-
ability to stay current on its payments to the Fund
The Respondent stated that it was "caught in the
position of terminating a high percentage of critical
skilled personnel and not being able to continue
production, or allowing them to work until an
overall settlement can be made with the Union and
the Trust Fund " It then indicated that ' [t]his is the
basis for the complaint Our financial picture has
not improved sufficiently that we can pay all of the
delinquent Trust Fund Health & Welfare payments
which would reinstate the plan " It proposed "that
some form of compromise be reached "
We agree with the General Counsel that the Re-
spondent's November 21 letter does not constitute
a proper answer under the Board's Rules We first
293 NLRB No 87
MCINTYRE ENGINEERING CO 717
find that the letter as a purported answer is untime-
ly The Region in its November 14 letter extended
the time for receipt of an answer to November 21
The Respondent's letter, dated November 21,
mailed sometime thereafter2 and not received until
November 28, was clearly untimely The letter also
fails as a proper answer because it does not specifi-
cally admit, deny, or explain each of the facts al-
leged in the complaint Moreover, no contention
raised in the Respondent's letter warrants denial of
the Motion for Summary Judgment The coin
plaint, as noted, alleges that the Respondent violat-
ed the Act by refusing to comply with a written
request of the Union to discharge employees who
had failed or refused to comply with the union-se-
cunty clause in the parties' contract The Respond-
ent does not deny this refusal but counters that
economic considerations forced it into this position
This is not a valid defense to the particular viola-
tion alleged or a relevant consideration in assessing
the legality of the Respondent's inaction In grant-
ing the Motion for Summary Judgment, we further
note that the Company did not respond to the
Notice to Show Cause, and has therefore failed
adequately to explain its failure to file a timely and
proper answer Accordingly, in view of the Re
spondent'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 3
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a California corporation with
an office and place of business in Brisbane, Califor-
nia, has been engaged in the manufacture and non
retail sale and distribution of fan coils and related
products During the calendar year ending Decem-
ber 31, 1987, the Respondent, in the course and
conduct of its operations, sold and shipped from its
Brisbane, California facility goods and materials
valued in excess of $50,000 directly to points out-
side the State of California We find that the Re-
2 There are two postmarks on the envelope that contained the letter-
one is dated November 22 and the other is dated November 26
2 As noted in its November 21 letter to the Region the Respondent
stated that it did not understand the requirement for further statements
prior to the hearing and that [a]n affidavit was taken by Mr Jack
Marks on October 19 1988 which I believed was our proper response
This explanation for failing to file a timely answer does not constitute
good cause within the meaning of Section 102 20 in light of the fact that
the complaint the acting regional attorneys November 14 letter extend
ing the due date to file an answer and the Notice to Show Cause all
served on the Respondent after October 19 put the Respondent on
notice that an answer was required
spondent 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
The following employees of the Respondent con
stitute a unit appropriate for the purposes of collec-
tive-bargaining within the meaning of Section 9(b)
of the Act
All sheet metal production workers, welders
and helpers employed by the Respondent at its
Brisbane, California location, excluding all
other employees, office clerical employees,
guards and supervisors as defined in the Act
Since at least July 1, 1987, and at all material
times, the Union has been the designated exclusive
collective-bargaining representative of the Re-
spondent's employees in the unit described above,
and the Union has been recognized as such repre-
sentative by the Respondent Such recognition has
been embodied in successive collective-bargaining
agreements , the most recent of which is effective
by its terms for the period July 1, 1987, to June 30,
1990, and thereafter from year to year, unless
either party serves notice of its desire to terminate
or modify the agreement 60 days prior to June 30,
1990
The parties' most recent collective-bargaining
agreement contains a union-security clause requir-
ing employees to join and maintain union member-
ship on completion of 30 days employment with
the Respondent About September 1, the Respond-
ent failed to continue in full force and effect all the
terms and conditions of the agreement described
above by refusing to honor the union-security
clause, in that the Respondent refused to comply
with a written request of the Union to discharge
employees who had failed or refused to comply
with the union security clause
Based on the above, we find that the Respondent
has, since September 1, refused to bargain collec-
tively in good faith with the Union as the exclusive
representative of the unit employees in violation of
Section 8(a)(5) and (1) and Section 8(d) of the Act
See King Electrical Mfg Co, 229 NLRB 615
(1977), Litton Systems, 283 NLRB 973 (1987)
CONCLUSION OF LAW
By failing and refusing to honor the union-secu
rity clause in its agreement with the Union, the Re-
spondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1), Section 8(d), and Section 2(6) and
(7) of the Act
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 designed to effectuate the policies of the
Act We shall order the Respondent to honor the
union-security provision of its 1987-1990 collec
tive-bargaining agreement with the Union
ORDER
The National Labor Relations Board orders that
the Respondent, McIntyre Engineering Co, Inc,
Brisbane, California, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Failing or refusing to continue in full force
and effect all the terms and conditions of its agree-
ment with the Union by refusing to comply with
the union-security provision of its 1987-1990 col-
lective bargaining agreement with the Union
(b) 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 neces-
sary to effectuate the policies of the Act
(a) Honor the union-security clause in the 1987-
1990 collective-bargaining agreement
(b) Post at its Brisbane, California facility copies
of the attached notice marked "Appendix "4
Copies of the notice, on forms provided by the Re-
gional Director for Region 20, 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 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 fall or refuse to continue in full
force and effect all the terms and conditions of our
agreement with the Union by refusing to comply
with the union-security provision of our 1987-1990
collective-bargaining agreement with the Union
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 honor the union-security clause in the
1987-1990 collective-bargaining agreement
MCINTRYE ENGINEERING CO, INC
4 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 ion
al 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