R. L. Broker & Co., Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 709 (N.L.R.B. 1985)

R L BROKER & CO
R. L. Broker & Company , Inc. and United Union of
Roofers, Waterproofers and Allied Workers
Local No. 20D , AFL-CIO. Case 17-CA-11442
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union on 26 January
1983, the General Counsel of the National Labor
Relations Board issued a complaint 11 March 1983
against the Company , the Respondent , alleging that
it has violated Section 8(a)(1) and (5) and Section
8(d) of the National Labor Relations Act. Al-
though properly served copies of the charge and
complaint , the Company has failed to file an
answer.
On 18 May 1983 the General Counsel filed a
Motion for Summary Judgment . On 25 May 1983
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted . The Company
filed no response. The allegations in the motion are
therefore undisputed.
Ruling on Motion for Summary Judgment
Notwithstanding the absence of good cause
shown for the failure to file a timely answer herein,
we decline to grant the General Counsel's Motion
for Summary Judgment as set forth below.
Alleged Unfair Labor Practices
The complaint alleges in pertinent part that:
(a) About mid-September 1982 the Respondent
and the Union reached full agreement on a collec-
tive-bargaining contract covering employees in an
appropriate unit and about 15 September 1982 exe-
cuted said agreement.
(b) Around mid-September 1982 the Respondent
and the Union reached agreement on a supplemen-
tary collective-bargaining agreement and executed
said agreement.
(c) Since about 15 September 1982 the Respond-
ent has refused to adhere to the collective-bargain-
ing agreement described above in paragraph (a).
(d) Since about 20 September 1982 the Respond-
ent has failed and refused to adhere to the collec-
tive-bargaining agreements described above in
paragraphs (a) and (b).
(e) Since about 1 December 1982 the Respondent
has subcontracted all bargaining unit work without
notifying the Union or having afforded it an oppor-
tunity to negotiate and bargain with respect to
such conduct and its effects.
709
The complaint further alleges that by the acts
and conduct described in the above paragraphs
"and by each of said acts," the Respondent has
interfered with, restrained, and coerced employees
and failed and refused to bargain collectively and
has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) and
Section 8(d) of the Act.
We note initially that the complaint is internally
inconsistent in that it alleges that the Respondent
violated the Act both by reaching the agreements
with the Union and by refusing to adhere to those
agreements. Further, the complaint fails to estab-
lish, by allegations or statements of fact, informa-
tion necessary to determine whether the Respond-
ent violated Section 8(a)(1) and (5) and Section
8(d) of the Act. Absent from the complaint are al-
legations or statements of facts which demonstrate
that the asserted contract between the Respondent
and the Union was in effect on 1 December 1982;
allegations that if such contract was in effect, it
contained a proscription against subcontracting,
and which describes its lawfulness under Section
8(e)'s proviso; or which enables us to determine
whether the decision to subcontract in fact re-
quired bargaining. i
Accordingly, we conclude that even in the, ab-
sence of an answer, it would be inappropriate to
grant the Motion for Summary Judgment. Because
the allegations in question constitute a substantial
portion of the complaint, we shall remand the
entire proceeding to the Regional Director for ap-
propriate action.
ORDER
It is ordered that the General Counsel's Motion
for Summary Judgment is denied
IT IS FURTHER ORDERED that the above-entitled
proceeding is remanded to the Regional Director
for Region 17 for appropriate action.
MEMBER DENNIS, dissenting.
I would grant the General Counsel's Motion for
Summary Judgim nt in this uncontested case. Sec-
tion 102.20 of the Board's Rules and Regulations
provides that, if no answer is filed, all allegations
of the complaint shall be deemed to be admitted.
The purpose of this section is obvious: to avoid the
expenditure of agency time and funds in conduct-
ing a hearing on a charge that the Respondent has
indicated it has no interest in defending. The ma-
jority decision today subverts the purpose of Sec-
tion 102.20, causing unnecessary cost and delay.
' See Otis Elevator Co, 269 NLRB 891, 893 (1984), Stine Scovil Con-
struction Co, 269 NLRB 465 (1984)
274 NLRB No. 101
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My, colleagues refuse to grant summary judg-
ment because they think the allegations of the com-
plaint fail to establish such necessary information as
whether the contract executed 15 September 1982
was in effect less than 3 months later on 1 Decem-
ber 1982 when the Respondent subcontracted all
bargaining unit work; whether the contract specifi-
cally proscribed subcontracting; whether the sub-
contracting proscription, if any, was lawful under
Section 8(e); and whether the decision to subcon-
tract required bargaining under Otis Elevator Co.,
269 NLRB 891 (1984).
I do not find the complaint deficient in any of
these matters. The central fact of this case is that
the Respondent admits all complaint allegations. It
admits that the Union is the exclusive representa-
tive of its employees in an appropriate unit; it exe-
cuted a collective-bargaining agreement and a sup-
plementary agreement in mid-September 1982; it
refused to adhere to these agreements; on 1 De-
cember 1982 it subcontracted all bargaining unit
work without notifying the Union or bargaining
with it over the subcontracting and its effects; and
finally, that by all of these acts, it violated Section
8(a)(1) and (5) and Section 8(d) of the Act.
Given the Respondent's admission that it com-
mitted unfair labor practices, the Board's sole re-
sponsibility is to determine whether the complaint
allegations support a cause of action. Had the com-
plaint, for example, failed to allege that the Union
was the exclusive bargaining representative of the
Respondent's employees in an appropriate unit, a
critical element for finding an 8(a)(5) violation
would be missing from the complaint. There are,
however, no such fatal omissions in the instant
complaint.
All of the problems my colleagues raise are po-
tential defenses that the Respondent could have
pressed, had it troubled itself to challenge the com-
plaint allegations. Where a respondent chooses to
remain silent after repeated warnings that its si-
lence will result in finding an admission of all alle-
gations in a proper complaint, the Board should
not mount the respondent's defense for it and allow
it to avoid a summary finding of unlawful conduct.
My colleagues err in providing defenses for a re-
spondent who has amply shown it does not wish to
be bothered with raising its own.