Nu-Temp Associates Heating & Cooling, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 2003

338 N.L.R.B. 790 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790
Nu-Temp Associates Heating and Cooling, Inc. and
Sheet Metal Workers’ International Association
Local Union No. 19. Case 4–CA–30836
February 26, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
Upon a charge filed by the Union on November 6,
2001, the General Counsel of the National Labor Rela-
tions Board issued a complaint on December 11, 2001,
against Nu-Temp Associates Heating and Cooling, Inc.,
the Respondent, alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations Act. Al-
though properly served with copies of the charge and
complaint, the Respondent failed to file a timely answer.
On February 8, 2002, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On Febru-
ary 13, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the General Counsel’s motion should not be granted.
The Respondent filed a response to the Notice to Show
Cause.1
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. In addition, the complaint affirmatively states
that unless an answer is filed within 14 days of service,
all the allegations in the complaint shall be considered to
be admitted to be true. Further, the undisputed allega-
tions in the Motion for Summary Judgment disclose that
the Board’s Regional Office, by letter dated January 4,
2002, notified the Respondent that it had failed to file an
answer within the time prescribed by the Board’s Rule.
The letter also advised the Respondent that, unless an
answer was received by January 11, a Motion for Sum-
mary Judgment would be filed.
The Respondent neither filed an answer to the com-
plaint nor requested an extension of time to do so. Ap-
parently in response to the Notice to Show Cause, how-
ever, the Respondent filed a letter with the Board on
March 8, 2002. The letter states that the Respondent met

1 The Notice to Show Cause directed the Respondent to show, in
writing filed with the Board on or before February 27, good cause why
the General Counsel’s motion should not be granted. The Respon-
dent’s reply, though dated February 27, was not filed with the Board
until March 8.
with the Union on December 21, 2001, to discuss nego-
tiations, and that it subsequently telephoned the Union
several times and left voice mail messages asking the
Union to contact the Regional Office to have the com-
plaint dismissed. The letter additionally states, “due to
the economy and severe lack of business we have no
immediate need for any employees and have decided to
downsize the company to Mom & Pop status.”
The Respondent is apparently proceeding without the
benefit of counsel. In determining whether to grant a
Motion for Summary Judgment on the basis of a respon-
dent’s failure to file a sufficient or timely answer, the
Board has shown some leniency towards pro se respon-
dents. Kenco Electric & Signs, 325 NLRB 1118 (1998);
A.P.S. Production/A. Pimental Steel, 326 NLRB 1296,
1297 (1998). Thus, the Board will generally not pre-
clude a determination on the merits if it finds that a pro
se respondent has filed a timely response, which can rea-
sonably be construed as denying the substance of the
complaint allegations. See, e.g., Harborview Electric
Construction Co., 315 NLRB 301 (1994). Similarly,
where a pro se respondent fails to file a timely answer,
but provides a “good cause” explanation, summary
judgment will not be entered against it. Lockhart Con-
crete, 336 NLRB 956, 957 (2001). In this case, however,
the Respondent did not respond to the complaint’s alle-
gations until after the Notice to Show Cause was issued,
despite having been reminded in writing to do so. Fur-
ther, the Respondent’s February 27 letter, which was not
filed with the Board until March 8, does not establish
good cause for its failure to file an answer. Thus, the
Respondent alleges that it asked the Union to contact the
Region to have the complaint withdrawn and it expected
the Union (and the Region) to comply. However, when
it received the Region’s January 4, 2002, reminder letter,
it became aware that the complaint had not been with-
drawn. It then had until January 11 to file an answer.
The Respondent did not file an answer or request an
extension of time to do so.2
In its February 27 letter, the Respondent also asserts
that it has decided to downsize the company “to Mom
and Pop status.” Even assuming the truth of this asser-
tion, the fact that the Respondent has decided to termi-
nate all of its employees does not constitute good cause
for its failure to file an answer. Nor is it a basis for deny-
2 A factor the Board considers in determining whether a respondent
has good cause for failing to file a timely answer is whether it requested
an extension of time. The Board has stated that a party’s “failure to
promptly request an extension of time to file an answer is a factor dem-
onstrating lack of good cause.” Dong-A Daily North America, 332
NLRB 15, 16 (2000), quoting Day & Zimmerman Services, 325 NLRB
1046, 1047 (1998).
338 NLRB No. 109
NU-TEMP ASSOCIATES HEATING & COOLING, INC. 791
ing the General Counsel’s Motion for Summary Judg-
ment. Even if the Respondent subsequently terminated
all of its employees, that would not excuse its prior fail-
ure and refusal to bargain on or about September 10,
2001.3 See, e.g., Atomic Fire Sprinkler LLC, 336 NLRB
896, 896 (2001).
Accordingly, in the absence of good cause being
shown for the Respondent’s failure to file a timely an-
swer, we grant the General Counsel’s Motion for Sum-
mary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Nu-Temp Associates Heating &
Cooling, Inc., a Pennsylvania Corporation with a facility
in Huntingdon Valley, Pennsylvania, has been engaged
in the heating and air conditioning industry as a contrac-
tor. During the 12-month period ending December 11,
2001, the Respondent, in conducting the operations de-
scribed above, received gross revenues in excess of
$500,000 and purchased and received at the facility
goods valued in excess of $50,000, directly from points
outside the State 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. We also find that Sheet Metal Workers’
International Association, Local Union No. 19 (the Un-
ion) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:

All full-time and regular part-time installers and help-
ers; excluding all other employees, office clerical em-
ployees, guards and supervisors as defined in the Act.

On August 28, 2001, the Union was certified as the
exclusive collective-bargaining representative of the unit,
and since that date, based on Section 9(a) of the Act, the
Union has been the exclusive collective-bargaining rep-
resentative of the unit.
The Union, on or about September 10, 2001, by tele-
phone call; and on or about October 15, 2001, in person,
requested that the Respondent bargain collectively with
the Union as the exclusive collective-bargaining repre-
sentative of the unit.

3 The Respondent’s assertions may, if proven, have an effect on the
remedy, however. We shall leave that issue to the compliance stage of
the proceeding.
Since on or about September 10, 2001, the Respondent
has failed and refused to bargain with the Union as the
exclusive collective-bargaining representative of the unit.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has failed and refused to bargain collectively with
the exclusive collective-bargaining representative of its
employees, and has thereby engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
THE 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, since September 10, 2001, to recog-
nize and bargain with the Union, we shall order the Re-
spondent to recognize and bargain in good faith with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the unit and, if an understanding
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).
ORDER
The National Labor Relations Board orders that the
Respondent, Nu-Temp Associates Heating and Cooling,
Inc., Huntingdon Valley, Pennsylvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Sheet Metal Workers’ International Association, Local
Union No. 19, as the exclusive bargaining representative
of the employees in the appropriate unit set forth below.
The appropriate unit is:
All full-time and regular part-time installers and help-
ers; excluding all other employees, office clerical em-
ployees, guards and supervisors as defined in the Act.

(b) 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain in good faith
with Sheet Metal Workers’ International Association,
Local Union No. 19 with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment of the employees in the unit and, if an un-
derstanding is reached, embody that understanding in a
signed agreement.
(b) Within 14 days after service by the Region, post at
its facility in Huntingdon Valley, Pennsylvania, copies of
the attached notice marked “Appendix.”4 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s author-
ized 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-
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 September
10, 2001.
(c) 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.

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-
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.”
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 any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with Sheet Metal Workers’ International Association,
Local Union No. 19 as the exclusive bargaining repre-
sentative of our employees in the appropriate unit set
forth below. The appropriate unit is:

All full-time and regular part-time installers and help-
ers; excluding all other employees, office clerical em-
ployees, 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, recognize and bargain in good
faith with Sheet Metal Workers’ International Associa-
tion, Local Union No. 19, with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment of our employees in the unit, and
put in writing and sign any agreement reached with the
Union.

NU-TEMP ASSOCIATES HEATING AND COOLING,
INC.