Nova Marine, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1993

311 N.L.R.B. 1394 (N.L.R.B. 1993)

1394
311 NLRB No. 196
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The charges and complaint were served by certified mail, return
receipt requested. The second amended charge and the complaint
were also served by certified mail but were returned ‘‘unclaimed.’’
The Respondent’s failure or refusal to claim certified mail cannot
serve to defeat the purposes of the Act. See Michigan Expediting
Service, 282 NLRB 210 fn. 6 (1986). Moreover, we note that the
second amended charge and the complaint were later served on the
Respondent in person by hand delivery.
2 The letter was sent as a courtesy. It is not a requirement of law
that such a letter be sent. See NLRB Casehandling Manual (ULP)
sec. 10280.3 and G.C. Mem. 90–11. The letter was sent by regular
mail and was returned to the Regional Office marked ‘‘Moved, Left
No Address.’’ The Respondent’s failure to inform the Regional Of-
fice of its most current address cannot defeat the purposes of the
Act. See, generally, Mondie Forge Co., 309 NLRB No. 82 fn. 1
(Nov. 25, 1992) (not printed in bound volumes).
Nova Marine, Inc. and Local Lodge S–9, District
Lodge 4, Industrial Union of Marine & Ship-
building Workers of America, International
Association of Machinists & Aerospace Work-
ers, AFL–CIO. Case 21–CA–29176
August 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge and amended charges filed by Local
Lodge S–9, District Lodge 4, Industrial Union of Ma-
rine & Shipbuilding Workers of America, International
Association of Machinists & Aerospace Workers,
AFL–CIO, the Union, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
March 30, 1993, against Nova Marine, Inc., the Re-
spondent, alleging that it has violated Section 8(a)(1)
and (5) of the National Labor Relations Act. Although
properly served copies of the charge, amended charges,
and complaint,1 the Respondent failed to file an an-
swer.
On July 23, 1993, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On July
27, 1993, 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 Respond-
ent filed no response. The allegations in the motion are
therefore undisputed.
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 July 16, 1993,
wrote to the Respondent advising that unless an an-
swer was received July 20, 1993, a Motion for Sum-
mary Judgment would be filed.2
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 corporation, with an office and
place of business in Wilmington, California, has been
engaged in the business of general ship repairs. During
the 12-month period ending December 31, 1992, the
Respondent purchased and received goods valued in
excess of $50,000 directly from points outside the
State of California. 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 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 collective
bargaining within the meaning of Section 9(b) of the
Act:
All production and maintenance employees of the
Respondent’s facilities wherever located nation-
ally or internationally who work on the construc-
tion, conversion, scrapping and/or repairing of any
vessel on the Pacific Coast including, but not lim-
ited to, dredges, floating drydocks [sic], offshore
drilling vessels, barges, mobil [sic] drilling plat-
forms, and all auxiliary equipment used in con-
junction therewith, excluding all firemen, super-
visory employees above leaderman, and guards as
defined under the Act.
Since on or before February 1, 1992, the Union has
been the designated exclusive collective-bargaining
representative of the employees in the unit and since
then the Union has been recognized as the representa-
tive by the Respondent. This recognition has been em-
bodied in a collective-bargaining agreement, the most
current of which is in effect from February 1, 1992,
to February 2, 1995.
Since on or about February 1, 1992, the Union has
been the exclusive collective-bargaining representative
of the unit employees. At all times since about Feb-
ruary 1, 1992, based on Section 9(a) of the Act, the
Union has been the exclusive collective-bargaining
representative of the Respondent’s unit employees.
About February 1, 1992, the Respondent and the
Union entered into a collective-bargaining agreement
1395NOVA MARINE, INC.
which is in effect by its terms from February 1, 1992,
to February 2, 1995. The Respondent has failed to
honor the terms and conditions of that agreement by:
(i) Since on or about November 1, 1992, failing
and/or refusing to transfer union dues to the Union as
required under the union security clause of the agree-
ment.
(ii) Since on or about November 1, 1992, failing
and/or refusing to pay insurance premiums as required
under the health and welfare clause of the agreement.
(iii) Since on or about December 18, 1992, failing
and/or refusing to pay wages as required under the
schedule of wages clause of the agreement.
(iv) Since on or about January 11, 1993, failing
and/or refusing to recall unit employees to work ac-
cording to seniority as required under the seniority
clause of the agreement.
(v) Since on or about January 28, 1993, failing
and/or refusing to deduct union dues from the unit em-
ployees’ payroll checks as required under the union se-
curity clause of the agreement.
The Respondent engaged in this conduct without the
Union’s consent. The terms and conditions affected are
mandatory subjects for the purposes of collective bar-
gaining.
CONCLUSION OF LAW
By failing to honor the terms of its collective-bar-
gaining agreement as set forth above, the Respondent
has violated Section 8(a)(1) and (5) of the Act, and has
thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(d) and Sec-
tion 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. The Re-
spondent shall be required to remit to the Union the
union dues for those employees who have executed
dues checkoff authorizations that have not been remit-
ted since on or about November 1, 1992, with interest
to be computed in the manner set forth in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). The
Respondent shall also be ordered to make whole its
employees for failure to pay insurance premiums since
on or about November 1, 1992, for failure to pay con-
tract wages since on or about December 18, 1992, and
for failure to recall according to seniority since on or
about January 11, 1993, with interest thereon to be
computed in accordance with New Horizons, supra. In
addition, the Respondent shall reimburse unit employ-
ees for any expenses ensuing from its failure to make
such required payments or recall by order of seniority
as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981). Finally, we shall order the Respondent to honor
its contractual obligation to deduct union dues for
those employees who have executed dues checkoff au-
thorizations. The Union shall be made whole for fail-
ure to deduct dues since on or about January 28, 1993,
by reimbursement with interest computed in the man-
ner prescribed in New Horizons, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Nova Marine, Inc., Wilmington, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to continue in effect all the terms and
conditions of the collective-bargaining agreement.
(b) Failing and/or refusing to transfer union dues to
the Union as required under the union security clause
of the agreement.
(c) Failing and/or refusing to pay insurance pre-
miums as required under the health and welfare clause
of the agreement.
(d) Failing and/or refusing to pay wages as required
under the schedule of wages clause of the agreement.
(e) Failing and/or refusing to recall unit employees
to work according to seniority as required under the
seniority clause of the agreement.
(f) Failing and/or refusing to deduct union dues from
the unit employees’ payroll checks as required under
the union security clause of the agreement.
(g) 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) Honor the terms and conditions contained in the
1992–1995 collective-bargaining agreement.
(b) Remit to the Union the union dues for employ-
ees who executed dues checkoff authorizations that
have not been remitted since on or about November 1,
1992, with interest as described in the remedy section
of this decision.
(c) Remit insurance premiums not paid since No-
vember 1, 1992, as required by the contract and make
employees whole, with interest, for any expenses ensu-
ing from its failure to do so.
(d) Pay the wages as required under the schedule of
wages clause of the contract and make employees
whole, with interest, for its failure to do so since De-
cember 18, 1992.
(e) Recall employees as required under the seniority
clause of the contract and make employees whole, with
interest, for its failure to do so since January 11, 1993.
(f) Honor the dues deduction clause of the contract
and make the Union, whole, with interest, for its fail-
ure to do so since January 28, 1993.
1396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.’’
(g) 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 amount of backpay
due under the terms of this Order.
(h) Post at its facility in Wilmington, California,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, 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.
(i) 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 to honor the terms and conditions
of employment set forth in our collective-bargaining
contract with Local Lodge S–9, District Lodge 4, In-
dustrial Union of Marine & Shipbuilding Workers of
America, International Association of Machinists &
Aerospace Workers, AFL–CIO, covering the following
unit of employees:
All production and maintenance employees of
Nova Marine, Inc.’s facilities wherever located
nationally or internationally who work on the con-
struction, conversion, scrapping and/or repairing
of any vessel on the Pacific Coast including, but
not limited to, dredges, floating drydocks [sic],
offshore drilling vessels, barges, mobil [sic] drill-
ing platforms, and all auxiliary equipment used in
conjunction therewith, excluding firemen, super-
visory employees above leaderman, and guards as
defined under the Act.
WE WILL NOT fail to transfer union dues to the
Union as required under the union security clause.
WE WILL NOT fail to pay insurance premiums as re-
quired under the health and welfare clause.
WE WILL NOT fail to pay wages as required under
the schedule of wages clause.
WE WILL NOT fail to recall unit employees to work
according to seniority as required under the seniority
clause.
WE WILL NOT fail to deduct union dues from the
unit employees’ payroll checks as required under the
union security clause.
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 transfer union dues to the Union and de-
duct union dues from unit employees’ payroll checks
as required under the union security clause, and WE
WILL make the Union whole, with interest, for our fail-
ure to do so.
WE WILL pay insurance premiums as required under
the health and welfare clause, pay wages as required
under the schedule of wages clause, and recall unit
employees to work according to seniority as required
under the seniority clause and WE WILL make our em-
ployees whole, with interest, for our failure to do so.
NOVA MARINE, INC.