Schuykill Contracting Co.

National Labor Relations Board - Board Decisions

Jun 29, 1984

271 N.L.R.B. 71 (N.L.R.B. 1984)

SCHUYLKILL CONTRACTING CO.
Schuylkill Contracting Company and Cass Contract-
ing Company and United Mine Workers of
America. Cases 4-CA-13869 and 4-CA-13869-
2
29 June 1984
DECISION AND ORDER
CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
Upon charges filed by the Union 25 July and 8
August 1983, the General Counsel of the National
Labor Relations Board issued a consolidated com-
plaint 16 September 1983 against Respondent
Schuylkill Contracting Company and Respondent
Cass Contracting Company, alleging that they have
violated Section 8(a)(5) and (1) of the National
Labor Relations Act. Although properly served
copies of the charges and consolidated complaint,
the Respondents have failed timely to file an
answer.
On 9 November 1983 the General Counsel filed
a Motion for Summary Judgment. On 17 Novem-
ber 1983 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
Respondents thereafter filed a response to the
Motion for Summary Judgment, including an
answer to the consolidated complaint. The Union
filed a response to the notice and a Motion for
Summary Judgment, and a supplemental response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel. 2
Ruling on Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions provides that the complaint allegations shall
be deemed admitted if an answer is not filed within
10 days from service of the complaint, unless good
cause is shown. The complaint states that, unless an
answer is filed within 10 days of service, "all the
allegations in the Consolidated Complaint shall be
deemed to be admitted to be true and may be so
found by the Board." As no answer was filed and
no extension of time to answer requested or grant-
ed before the due date, the General Counsel filed
the Motion for Summary Judgment pursuant to
The Union filed a Motion for Summary Judgment on the same basis
as the General Counsel.
2 In granting the General Counsel's Motion for Summary Judgment,
Chairman Dotson specifically relies on the total failure of the Respond-
ents to contest either the factual allegations or the legal conclusions of
the General Counsel's complaint. Thus, the Chairman regards this pro-
ceeding as being essentially a default judgment which is without prece-
dential value.
Sections 102.203 and 102.21 of the Board's Rules
and Regulations, and the Board subsequently issued
the Notice to Show Cause.
The Respondents' answer to the motion admits
service and receipt of the charges and consolidated
complaint. The Respondents further admit failure
to answer the consolidated complaint within the
prescribed time,4 explaining that they provided the
General Counsel, by letter of 18 October 1983, that
part of the Union's requested information which
the Respondents reasonably believed the Union
was entitled to receive. The Respondents admit
that they failed to comply with the Board's Rules
concerning the filing of an answer and that the
consolidated complaint allegations should be admit-
ted as true and so found by the Board. The Re-
spondents further explain, however, that they failed
promptly to file an answer because they believed
that their 18 October 1983 letter directly fulfilled
their obligation to answer the consolidated com-
plaint. Finally, the Respondents incorporated with
their answer to the Motion for Summary Judgment
an answer to the consolidated complaint.
As the Motion for Summary Judgment points
out, the time for filing an answer to the consolidat-
ed complaint expired 29 September 1983. The Re-
spondents did not respond until the 18 October
1983 letter. The letter was delivered to the Region-
al Office 20 October 1983, 3 weeks after the 29
September deadline, and was therefore not timely.
In addition, the Respondents' 18 October 1983
letter does not satisfy Section 102.20 of the Board's
Rules and Regulations because it does not specifi-
cally admit, deny, or explain each allegation of the
consolidated complaint. The letter does not, there-
fore, serve as an answer within the meaning of the
Board's Rules. 5
We also find untimely the Respondents' attempt
to answer the consolidated complaint by attaching
an answer to that document to their response to
the Motion for Summary Judgment. See Middle
Eastern Bakery, 243 NLRB 503, 504 fn. 1 (1979);
Monroe Furniture Co., 231 NLRB 143 (1977).
Except for the Respondents' claim that they be-
lieved their 18 October letter fulfilled their obliga-
tions to answer the consolidated complaint, the Re-
spondents' response offers no explanation regarding
their failure to file a timely answer.6 We find that
the Respondents' submissions do not constitute
good cause for failing to file a timely answer
within the meaning of Section 102.20 of the
a The motion, at par. 3, inadvertently refers to Sec. 102.10.
4 The time for filing the answer expired 29 September 1983.
a American Steel Line Co., 253 NLRB 399, 400 (1980).
6 The Respondents never requested an extension of time in which to
file an answer.
271 NLRB No. 13
71
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's Rules and Regulations. We therefore grant
the General Counsel's Motion for Summary Judg-
ment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
Respondent Schuylkill, a Pennsylvania corpora-
tion with headquarters at Minersville, Pennsylva-
nia, mines anthracite coal. During the 12 months
preceding the complaint, it sold and shipped prod-
ucts, goods, and materials valued in excess of
$50,000 to Respondent Cass, an enterprise located
within the Commonwealth of Pennsylvania.
Respondent Cass, a Pennsylvania corporation
with headquarters at Minersville, Pennsylvania,
prepares and resells anthracite coal. During the 12
months preceding the complaint, it sold and
shipped products, goods, and materials valued in
excess of $50,000 directly to points outside the
Commonwealth of Pennsylvania.
We find that the Respondents are employers en-
gaged 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
A. The Units and the Union's Representative
Status
Since June 1978, Respondent Schuylkill has rec-
ognized the Union as the exclusive bargaining rep-
resentative of its employees in a unit (Unit A) de-
scribed in article 2, sections (b) and (c), of their
most recent collective-bargaining agreement, effec-
tive by its terms from 1 May 1978 to 31 April 1981.
Unit A is appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of
the Act.
Since June 1978, Respondent Cass has recog-
nized the Union as the exclusive bargaining repre-
sentative of its employees in a unit (Unit B) de-
scribed in article 2, sections (b) and (c), of their
most recent collective-bargaining agreement, effec-
tive by its terms from I May 1978 to 31 April 1981.
Unit B is appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of
the Act.
B. The Refusals to Bargain
Since 25 January 1983 Respondent Schuylkill has
laid off certain employees in Unit A, and Respond-
ent Cass has laid off certain employees in Unit B,
without notice to or bargaining with the Union
over the layoffs and the effects of the layoffs.
Since about 19 July 1983, orally, and since about
29 July 1983 by letter, the Union requested Re-
spondent Schuylkill and Respondent Cass to fur-
nish the Union with the following information nec-
essary and relevant to its role as the exclusive col-
lective-bargaining representative of the employees
in Units A and B: (1) the layoff dates at Schuylkill
and Cass; (2) the number and names of the bargain-
ing unit employees affected by the layoffs; (3) the
names of those who decided that the layoffs would
take place; (4) the reasons for the layoffs; (5) how
long in advance the layoffs had been planned; (6)
the names of any recalled employees and the dates
they returned to work; and (7) the names, address-
es, classifications, wage rates, and dates of hire and
birth of all Unit A and B employees. Since about
19 July 1983 Respondent Schuylkill and Respond-
ent Cass have each failed and refused to furnish the
information to the Union.
By the conduct described above, Respondent
Schuylkill and Respondent Cass have violated Sec-
tion 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By laying off certain employees in Unit A
without notice to or bargaining with the Union
concerning the layoffs and the effects of the lay-
offs, Respondent Schuylkill has engaged in unfair
labor practices affecting commerce within the
meaning of Sections 8(a)(5) and (1) and 2(6) and (7)
of the Act.
2. By laying off certain employees in Unit B
without notice to or bargaining with the Union
concerning the layoffs and the effects of the lay-
offs, Respondent Cass has engaged in unfair labor
practices affecting commerce within the meaning
of Sections 8(a)(5) and (1) and 2(6) and (7) of the
Act.
3. By failing and refusing to provide the Union
with information it requested 19 July and 29 July
1983 concerning the layoff dates at Schuylkill and
Cass; the number and names of the bargaining unit
employees affected by the layoffs; the names of
those who decided that the layoffs would take
place; the reasons for the layoffs; how long in ad-
vance the layoffs had been planned; the names of
any recalled employees and the dates they returned
to work; and the names, addresses, classifications,
wage rates, and dates of hire and birth of all Unit
A and B employees, Respondents Schuylkill and
Cass have respectively engaged in unfair labor
practices affecting commerce within the meaning
of Sections 8(a)(5) and (1) and 2(6) and (7) of the
Act.
72
SCHUYLKILL CONTRACTING CO.
REMEDY
Having found that the Respondents have each engaged
in certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondents violated Sec-
tion 8(a)(5) and (1) of the Act by laying off em-
ployees since 25 January 1983 without notice to or
bargaining with the Union about the layoffs or the
effects of the layoffs, we shall inter alia order the
Respondents to rescind the unilateral layoffs if so
requested by the Union, and to make whole the
laid-off employees for any loss of earnings and
other benefits suffered as a result of the Respond-
ents' unfair labor practices. All employees affected
by the unilateral layoffs, however, are not ipso
facto entitled to payments of some kind. Whether
any particular employee would have been laid off
but for the unfair labor practices, for what period
of time, whether any particular employee is enti-
tled to reinstatement or reimbursement and, if so,
in what amount, are questions to be resolved in a
compliance proceeding if the parties are unable to
reach agreement on these issues. See Wellman In-
dustries, 222 NLRB 204, 208 (1976), enfd. 549 F.2d
830 (D.C. Cir. 1977).
Having found that the Respondents violated Sec-
tion 8(a)(5) and (1) by failing and refusing to pro-
vide the Union with relevant and necessary infor-
mation requested 19 July and 29 July 1983, we
shall order them to furnish the requested informa-
tion to the Union.
ORDER
The National Labor Relations Board orders that
A. Respondent Schuylkill Contracting Company,
Minersville, Pennsylvania, its officers, agents, suc-
cessors, and assign, shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Work-
ers of America as the exclusive bargaining repre-
sentative of the employees in the bargaining unit,
by unilaterally laying off employees, and by refus-
ing to bargain with the Union concerning the ef-
fects of the layoffs.
(b) Failing and refusing to furnish the Union the
relevant and necessary information it requested 19
July and 29 July 1983.
(c) 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) On request, bargain with United Mine Work-
ers of America concerning layoffs of employees
and the effects of the layoffs on employees in the
unit described in article 2, sections (b) and (c) of
their most recent collective-bargaining agreement,
effective by its terms from I May 1978 to 31 April
1981.
(b) On request, rescind its layoffs of unit employ-
ees since about 25 January 1983, and make whole
employees for loss of earnings and other benefits
suffered by them as a result of its unilateral layoffs
as provided by the remedy section of this decision.
(c) Furnish the Union the relevant and necessary
information it requested 19 and 29 July 1983, in-
cluding information concerning the layoff dates at
Schuylkill; the number and names of the bargaining
unit employees affected by the layoffs; the names
of those who decided that the layoffs would take
place; the reasons for the layoffs; how long in ad-
vance the layoffs had been planned; the names of
any recalled employees and the dates they returned
to work; and the names, addresses, classifications,
wage rates, and dates of hire and birth of all unit
employees.
(d) 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.
(e) Post at its Minersville, Pennsylvania places of
business copies of the attached notice marked "Ap-
pendix A." 7 Copies of the notice, on forms provid-
ed by the Regional Director for Region 4, after
being signed by Respondent Schuylkill's authorized
representative, shall be posted by Respondent
Schuylkill immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent Schuylkill to ensure
that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent Schuylkill has taken to comply.
B. Respondent Cass Contracting Company, Min-
ersville, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Work-
ers of America as the exclusive bargaining repre-
I 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
73
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of the employees in the bargaining unit,
by unilaterally laying off employees, and by refus-
ing to bargain with the Union concerning the ef-
fects of the layoffs.
(b) Failing and refusing to furnish the Union
with the relevant and necessary information it re-
quested 19 July and 29 July 1983.
(c) 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) On request, bargain with United Mine Work-
ers of America concerning layoffs of employees
and the effects of the layoffs on employees in the
unit described in article 2, sections (b) and (c) of
their most recent collective-bargaining agreement,
effective by its terms from I May 1978 to 31 April
1981.
(b) On request, rescind its layoffs of unit employ-
ees since about 25 January 1983, and make whole
employees for loss of earnings and other benefits
suffered by them as a result of its unilateral layoffs
as provided by the remedy section of this decision.
(c) Furnish the Union the relevant and necessary
information it requested 19 July and 29 July 1983,
including information concerning the layoff dates
at Cass; the number and names of the bargaining
unit employees affected by the layoffs; the names
of those who decided that the layoffs would take
place; the reasons for the layoffs; how long in ad-
vance the layoffs had been planned; the names of
any recalled employees and the dates they returned
to work; and the names, addresses, classifications,
wage rates, and dates of hire and birth of all unit
employees.
(d) 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.
(e) Post at its Minersville, Pennsylvania places of
business copies of the attached notice marked "Ap-
pendix B." 8 Copies of the notice, on forms provid-
ed by the Regional Director for Region 4, after
being signed by Respondent Cass' authorized rep-
resentative, shall be posted by Respondent Cass im-
mediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
s See fn.7, above.
spondent Cass to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent Cass has taken to comply.
APPENDIX A
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 refuse to bargain with United
Mine Workers of America as the exclusive bargain-
ing representative of the employees in the bargain-
ing unit, by unilaterally laying off employees, and
by refusing to bargain with the Union concerning
the effects of the layoffs.
WE WILL NOT fail and refuse to furnish the
Union the relevant and necessary information it re-
quested 19 July and 29 July 1983.
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, on request, bargain with the Union
concerning layoffs of employees and the effects of
the layoffs on employees in the unit described in
article 2, sections (b) and (c), of our most recent
collective-bargaining agreement, effective by its
terms from I May 1978 to 31 April 1981.
WE WILL, on request, rescind our layoffs of unit
employees since about 25 January 1983, and make
whole employees for loss of earnings and other
benefits suffered by them as a result of our unilater-
al layoffs for the period decided by the National
Labor Relations Board, with interest.
WE WILL furnish the Union the relevant and
necessary information it requested 19 July and 29
July 1983, including information concerning the
layoff dates; the number and names of the bargain-
ing unit employees affected by the layoffs; the
names of those who decided that the layoffs would
take place; the reasons for the layoffs; how long in
advance the layoffs had been planned; the names of
any recalled employees and the dates they returned
to work; and the names, addresses, classifications,
wage rates, and dates of hire and birth of all unit
employees.
SCHUYLKILL CONTRACTING COMPANY
74
SCHUYLKILL CONTRACTING CO.
APPENDIX B
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 refuse to bargain with United
Mine Workers of America as the exclusive bargain-
ing representative of the employees in the bargain-
ing unit, by unilaterally laying off employees, and
by refusing to bargain with the Union concerning
the effects of the layoffs.
WE WILL NOT fail and refuse to furnish the
Union the relevant and necessary information it re-
quested 19 July and 29 July 1983.
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, on request, bargain with the Union
concerning layoffs of employees and the effects of
the layoffs on employees in the unit described in
article 2, sections (b) and (c), of our most recent
collective-bargaining agreement, effective by its
terms from I May 1978 to 31 April 1981.
WE WILL, on request, rescind our layoffs of unit
employees since about 25 January 1983, and make
whole employees for loss of earnings and other
benefits suffered by them as a result of our unilater-
al layoffs for the period decided by the National
Labor Relations Board, with interest.
WE WILL furnish the Union the relevant and
necessary information it requested 19 July and 29
July 1983, including information concerning the
layoff dates; the number and names of the bargain-
ing unit employees affected by the layoffs; the
names of those who decided that the layoffs would
take place; the reasons for the layoffs; how long in
advance the layoffs had been planned; the names of
any recalled employees and the dates they returned
to work; and the names, addresses, classifications,
wage rates, and dates of hire and birth of all unit
employees.
CASS CONTRACTING COMPANY
75