Seco Electric Co.

National Labor Relations Board - Board Decisions

Mar 7, 1985

274 N.L.R.B. 755 (N.L.R.B. 1985)

SECO ELECTRIC CO
Seco Electric Company and Donald Tutorow. Case
9-CA-20820
7 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by Donald Tutorow 11
April 1984,1 the Acting General Counsel of the
National Labor Relations Board issued a complaint
27 July against Seco Electric Company, the Re-
spondent, alleging that it has violated Section
8(a)(1) of the National Labor Relations Act, by
constructively discharging the Charging Party on
23 March.
On 10 August the Respondent filed an answer
admitting certain allegations, but denying other al-
legations of the complaint, including the commis-
sion of any unfair labor practices. As an affirmative
defense the Respondent alleges that the Charging
Party was terminated for refusing to report for
work.
On 29 August the Acting General Counsel filed
an amended complaint alleging the Respondent's
violation of Section 8(a)(1) by deciding to transfer
the Charging Party on 23 March and by construc-
tively discharging him on 26 March. Although
properly served with a copy of the amended com-
plaint the Respondent has failed to file an answer.2
On 5 November the General Counsel filed a
Motion for Summary Judgment and a memoran-
dum in support thereof. On 7 November the Board
issued an order transferring the proceeding to the
Board and Notice to Show Cause why the motion
should not be granted. The Respondent filed no re-
sponse. The allegations in the motion are therefore
undisputed.
Ruling on the Motion for Summary Judgment
In his Motion for Summary Judgment counsel
for the General Counsel avers that the Respondent
has failed to file an answer to the amended com-
plaint and that under Section 102.20 of the Nation-
al Labor Relations Board's Rules and Regulations
i All dates are 1984 unless otherwise noted
2 On 10 September counsel for the General Counsel sent a telegram
and a letter to the Respondent 's controller , who had filed the answer to
the complaint , to confirm a phone conversation of that same date with
the Respondent 's attorney during which the counsel for the General
Counsel informed the attorney that if no answer were received by the
close of business 12 September (the hearing was set for 13 September)
counsel for the General Counsel would move for summary judgment On
29 October the Respondent's attorney sent a letter to counsel for the
General Counsel stating that' the Respondent did not intend to file an
answer to the amended complaint and that the General Counsel might,
"therefore, per our discussion, proceed to formerly [sic] file your motion
for Summary Judgment based upon the pleadings contained in amended
complaint "
755
the Board should find the allegations of the com-
plaint to be true and should issue an order based on
such findings. We shall deny this motion for the
following reasons.
In the complaint and the amended complaint, the
Acting General Counsel has alleged that the
Charging Party has engaged in "concerted activi-
ties for the purpose of collective bargaining and
other mutual aid or protection, i.e., his making
complaints to the Ohio Department of Industrial
Relations regarding Respondent's alleged failure to
pay prevailing wage rates to its employees and its
alleged failure to pay appropriate sums of monies
to the Profit Sharing Trust on their behalf." (Em-
phasis added.) In Meyers Industries, 268 NLRB 493
(1984), which was published before the initial com-
plaint issued in this case, the Board held that for
activity to be concerted it must "be engaged in
with or on the authority of other employees, and
not solely by and on behalf of the employee him-
self." Meyers, supra at 497. Here, the complaint, by
its use of the singular pronoun "his," limits the
complaints made to a state agency to individual
action. Even assuming that all allegations in the
amended complaint are admitted in order to find
the violations as alleged, we would have to either
ignore the plain language of the complaint or
engage in speculation as to the Charging Party's
activity. 3
For the reasons set forth above we find that sub-
stantial and material issues of fact and law are
raised by the complaint which are not susceptible
to conclusive findings in this proceeding.
Accordingly, we shall deny the motion.
ORDER
The General Counsel's Motion for Summary
Judgment is denied.
IT IS FURTHER ORDERED that this proceeding be
remanded to the Regional Director for Region 9
for further appropriate action.
MEMBER DENNIS, concurring in the result.
The majority decision amounts to nothing more
than an advisory opinion on the applicability of
Meyers Industries, 268 NLRB 493 (1984). It is en-
tirely unnecessary to reach the question whether
the allegations of the amended complaint support a
cause of action. The General Counsel's Motion for
Summary Judgment should be denied instead on
the ground that under Board precedent the Re-
spondent's answer to the original complaint, deny-
ing the commission of any unfair labor practices,
a We agree with Member Dennis that Marko Contractors, 269 NLRB
990 (1984), is further grounds for denying the General Counsel 's Motion
for Summary Judgment
274 NLRB No. 106
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raises litigable issues not appropriate for resolution
in a summary judgment proceeding.'
' Marko Contractors , 269 NLRB 990 (1984) The instant case is virtual-
ly identical to Marko in that the only substantive difference between the
amended complaint and the original complaint is the addition of an
8(a)(1) allegation