Oakstream, Inc

National Labor Relations Board - Board Decisions

May 9, 1989

293 N.L.R.B. 997 (N.L.R.B. 1989)

OAKSTREAM INC 997
Oakstream , Inc and its alter ego J & B, Inc and
Carpenters Local 248 a/w United Brotherhood
of Carpenters and Joiners of America, AFL-
CIO Case 8-CA-21291
May 9, 1989
DECISION AND ORDER
January 12, 1989 The Respondent filed no answer
and did not request another extension of time
In the absence of good cause being shown for
the failure to file a timely answer, 2 we grant the
General Counsel's and Charging Party's Motions
for Summary Judgment On the entire record, the
Board makes the following
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
Upon a charge filed by the Union September 26,
1988, the General Counsel of the National Labor
Relations Board issued a complaint against Oak
stream, Inc and its alter ego J & B, Inc (collec
Lively referred to as the Respondent), alleging that
it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act Although properly
served copies of the charge and complaint, the Re-
spondent has failed to file an answer
On January 24, 1989, the General Counsel filed a
Motion for Summary Judgment On January 26,
1989, 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 a response entitled Motion in Op
position to Motion for Summary Judgment, and the
Charging Party filed a Motion to Strike Answer
and Motion for Summary Judgment
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motions 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, "all
the allegations in the Complaint shall be deemed to
be admitted to be true and may be so found by the
Board " Further, the undisputed allegations in the
Motion for Summary Judgment disclose that the
General Counsel, by letter dated December 21,
1988, notified the Respondent that unless an answer
was received by close of business January 3, 1989,
a Motion for Summary Judgment would be filed
On December 30, 1988, the Respondent requested
an extension of time to answer the complaint' On
January 4, 1989, the Regional Director extended
the time for filing an answer until close of business
' The attorney who filed the request states inter alia that the Re
spondent incorrectly believed that he represented the Respondent on the
instant charge and consequently needed an extension of time to secure
other counsel
FINDINGS OF FACT
I JURISDICTION
Oakstream, Inc (Oakstream), an Ohio corpora-
tion, is engaged in the nonretail construction car-
pentry business in Toledo, Ohio, where during the
12 months preceding the filing of the charge it pro-
vided services valued in excess of $50,000 for the
Whitehurst Development Corporation, which itself
is engaged in commerce on a direct basis J & B,
Inc (J & B), an Ohio corporation, is engaged in
the nonretail construction carpentry business in
Toledo, Ohio, where during the period June 3 to
November 3, 1988, it provided services valued in
excess of $50,000 for the Whitehurst Development
Corporation, which itself is engaged in commerce
on a direct basis On June 3, 1988, J & B was es-
tablished by Oakstream as a subordinate entity to
and a continuation of Oakstream By virtue of the
acts described in the previous sentence, we find
J & B and Oakstream are alter egos and a single
employer within the meaning of the Act We find
that the Respondent 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 organi-
zation within the meaning of Section 2(5) of the
Act
II ALLEGED UNFAIR LABOR PRACTICES
The following employees of Oakstream consti-
tute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act
All employees of Oakstream as defined by Ar-
ticles II and XIX of the Articles of Agreement
between the Labor Relations Division of the
Associated Building Contractors of North-
western Ohio, Inc and Maumee Valley Car-
penters District Council Local Union Nos
2 The Respondents response states that the Respondent when previ
ous counsel withdrew obtained different counsel and an answer was
prepared the same day The response seems to imply that an answer was
submitted The response does not however supply dates for any of these
purported events and no answer is attached to the response We find that
the response fails to explain why the Respondent did not file an answer
before the twice extended deadline and therefore does not constitute
good cause for a failure to file a timely answer Accordingly we need
not pass on the Charging Party s motion to strike
293 NLRB No 124
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
248, 1138, 1581 and 1393 (Millwrights & Pile-
drivers)
Since about February 8, 1988 , the Union has
been the designated exclusive collective bargaining
representative of the unit and has been recognized
as such by Oakstream The recognition was em-
bodied in a recognition agreement dated February
8, 1988 , by which Oakstream became a party to a
collective-bargaining agreement effective by its
terms for the period April 1, 1987, through June
30, 1989 The Union is by virtue of Section 9(a) of
the Act the exclusive representative of the unit for
the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and
other terms and conditions of employment
On March 30, 1988, the Union orally requested
Oakstream to furnish the Union with wage and
hour information for its unit employees concerning
two grievances This information is necessary for,
and relevant to, the Union's performance of its
function as the exclusive collective-bargaining rep
resentative of the unit Since about March 30, 1988,
Oakstream has failed to furnish the requested infor-
mation
On May 6, 1988, the Union orally requested the
names of all the unit employees on the College Sta-
tion job and their rates of pay This information is
necessary for, and relevant to, the Union's perform-
ance of its function as the exclusive collective-bar-
gaining representative of the unit Since about May
6, 1988, Oakstream has failed to furnish the re-
quested information
On May 11, 1988, the Union by letter requested
Oakstream to furnish the Union with specified in-
formation concerning a possible grievance 3 This
information is necessary for, and relevant to, the
Union's performance of its function as the exclusive
collective-bargaining representative of the unit
Since about May 11, 1988, Oakstream has failed to
furnish the requested information
Since about April 20, 1988, the Respondent has
refused to abide by the collective-bargaining agree-
ment described above, and has totally repudiated
the agreement and failed and refused to recognize
and bargain with the Union
By the above acts, the Respondent has refused to
bargain in good faith with the representative of its
employees in violation of Section 8(a)(5) and (1) of
the Act
8 The information requested included a list of all carpenter employees
copies of payroll records and a list of any subcontractors hired by Oak
stream to perform carpenter labor
CONCLUSIONS OF LAW
By refusing to furnish requested information that
is necessary for, and relevant to, the Union's per-
formance of its function as the exclusive collective-
bargaining representative of unit employees, and by
repudiating the collective-bargaining agreement
and refusing to recognize and bargain with the
Union, the Respondent has engaged in unfair labor
practices affecting commerce 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 violated
Section 8(a)(5) and (1) of the Act, 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 recognize and
bargain with the Union, to abide by the collective-
bargaining agreement, and to furnish the Union the
information it requested We shall also provide a
make-whole remedy in the event unit employees
suffered losses as a result of the Respondent's
unfair labor practices Backpay owed shall be com-
puted in the manner set forth in Ogle Protection
Service, 183 NLRB 682 (1970), with interest as pre
scribed in New Horizons for the Retarded, 283
NLRB 1173 (1987)
ORDER
The National Labor Relations Board orders that
the Respondent, Oakstream, Inc and its alter ego
J & B Inc, Toledo, Ohio, its officers, agents, suc-
cessors, and assigns, shall
1 Cease and desist from
(a) Refusing to furnish Carpenters Local 248 a/w
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, with requested information
that is necessary for, and relevant to, the Union's
performance of its function as the exclusive collec
tive-bargaining representative of the Respondent's
employees in the following appropriate unit All
employees of Respondent as defined by Articles II
and XIX of the Articles of Agreement between the
Labor Relations Division of the Associated Build-
ing Contractors of Northwestern Ohio, Inc and
Maumee Valley Carpenters District Council Local
Union Nos 248, 1138, 1581 and 1393 (Millwrights
& Piledrivers)
(b) Repudiating the collective-bargaining agree-
ment and refusing to recognize and bargain with
the Union
(c) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
OAKSTREAM INC
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) On request, recognize and bargain with the
Union as the exclusive collective-bargaining repre-
sentative of unit employees on terms and condi-
tions of employment
(b) Furnish the Union with the requested infor
mation
(c) Abide by the collective-bargaining agree-
ment
(d) Make whole employees for any loss of earn-
ings and other benefits resulting from the failure to
abide by the collective-bargaining agreement in the
manner described in the remedy section of this de
cision
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(f) Post at its facility in Toledo, Ohio, copies of
the attached notice marked "Appendix "4 Copies
of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps 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 Nation
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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
999
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 refuse to furnish Carpenters Local
248 a/w United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, with requested in-
formation that is necessary for, and relevant to, the
Union's performance of its function as the exclusive
collective-bargaining representative of our employ-
ees in the following appropriate unit
All our employees as defined by Article II and
XIX of the Articles of Agreement between the
Labor Relations Division of the Associated
Building Contractors of Northwestern Ohio,
Inc and Maumee Valley Carpenters District
Council Local Union Nos 248, 1138, 1581 and
1393 (Millwrights & Piledrivers)
WE WILL NOT repudiate our collective bargain-
ing agreement or refuse to recognize and bargain
with the Union
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act
WE WILL, on request, recognize and bargain
with the Union as the exclusive collective-bargain-
ing representative of our employees on terms and
conditions of employment
WE WILL furnish the Union with the requested
information
WE WILL abide by our collective-bargaining
agreement
WE WILL make whole employees for any loss of
earnings and other benefits resulting from our fail-
ure to abide by the collective-bargaining agree-
ment, with interest
OAKSTREAM, INC AND ITS ALTER
EGO J & B, INC