Sorensen Industries, Inc., Cullen Machining, Inc., And American Brass And Bronze, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1988

290 N.L.R.B. 1132 (N.L.R.B. 1988)

1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sorensen Industries, Inc., Cullen Machining, Inc.,
and American Brass and Bronze , Inc. and
United Steelworkers of America , Local Union
5424, AFL-CIO, CLC and International Broth-
erhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America , AFL-CIO, Local
Union No. 384, Party in Interest . Cases 4-CA-
16103, 4-CA-16357, 4-CA-16416, and 4-CA-
16873
September 20, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
Upon charges filed by the Union September 30,
1986, January 30, 1987 , February 24, 1987, and Oc-
tober 8 , 1987,1 the General Counsel of the National
Labor Relations Board issued a consolidated com-
plaint in Cases 4-CA-16103, 4-CA-16357, 4-CA-
16416, and 4-CA-16873 on November 30, 1987,
against the Companies , the Respondent .2 The con-
solidated complaint alleges that the Respondent has
violated Section 8 (a)(5), (2), and (1) of the Act. Al-
though properly served copies of the charges and
complaints , the Respondent has failed to file an
answer.
On January 4, 1988 , the General Counsel filed a
Motion for Summary Judgment . On January 11,
1988, 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.
The National Labor Relations Board has delegat-
ed 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 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 consolidated com-
plaint states that unless an answer is filed within 14
days of service , "all of the allegations in the con-
solidated complaint shall be deemed to be admitted
to be true and may be so found by the Board."
In its response to the Notice to Show Cause and
request for permission to file an answer , the Re-
spondent denies the commission of any unfair labor
practices and asserts that it can produce evidence
"The charges are in Cases 4-CA-16103, 4-CA-16357, 4-CA-16416,
and 4-CA-16873 respectively The charges in the first three cases were
amended on October 8, 1987.
'A consolidated complaint was issued in Cases 4-CA-16103 and 4-
CA-16416 on April 30, 1987 A second consolidated complaint in Cases
4-CA-16103, 4-CA-16416, and 4-CA-16357 issued on May 20, 1987
to that effect. With respect to the failure to contact
the Regional Office concerning an answer or an ex-
tension of time to file an answer, the Respondent
asserts that the "multiple charges and Orders,
formed a mosaic which so confused Respondent
that it was believed the matters were moot." In
support of this assertion, the Respondent stated
that the Acting Regional Director refused to issue
a complaint on the charge in Case 4-CA-16357 al-
leging that Cullen Machining, Inc. is a single em-
ployer or alter ego of Sorensen Industries, Inc.,
and that because the Union did not file an appeal,
the matter was closed. According to the Respond-
ent, this amounted to a dismissal of the alter ego or
single-employer portion of the case. The Respond-
ent further stated that "for reasons never fully ex-
plained," the Regional Director "withdrew his dis-
missal of that aspect of the charge," and that the
alter ego/single issue has survived to become part
of the consolidated complaint.
The Respondent further argues that the Regional
Director has been aware of its challenge to the
unfair labor practice charges and that an answer
filed now would be repetitious to information it
earlier supplied the Regional Director (such as that
which led the Regional Director to "dismiss" the
single-employer/alter ego portion of the case).
Thus, the Respondent argues, an answer filed now
would not involve surprise to the General Counsel.
The Respondent also claims that good cause for
failing to file an answer is shown by the fact that
the Respondent, Sorensen Industries, Inc., filed a
Chapter 11 bankruptcy petition on December 13,
1985, which was converted to a Chapter 7 petition
on May 7, 1987, and Sorensen Industries, Inc.,
therefore, properly believed its liability under the
National Labor Relations Act had ended. The Re-
spondent further asserts that the Respondent,
American Brass and Bronze, Inc., did not have
notice of the alleged unfair labor practices before
purchasing the assets of Sorensen Industries, Inc.
on May 29, 1987. The bankruptcy court "simply di-
rected" American Brass and Bronze, Inc. to re-
solve with the Union an itemized list of alleged pay
and benefit discrepancies.
Finally, the Respondent argues that the Motion
for Summary Judgment should be denied because
the Party-in-Interest, Teamsters Local 384, has
abandoned the bargaining unit at Cullen Machining
and the Respondent is prepared to engage in settle-
ment negotiations with the Charging Party, Steel-
workers Local 5424.
We have reviewed each of the Respondent's
contentions and, for reasons supplied below, con-
clude that none constitutes good cause for its fail-
ure to file a timely answer.
290 NLRB No. 136
SORENSEN INDUSTRIES
First, we find no meet to the Respondent's con-
tention that the multiple charges and orders cre-
ated a situation so confusing as to explain its failure
to file a timely answer or request an extension The
charges were timely filed and consolidated com-
plaints were routine examples of Board procedure 3
Nor is there meet to the Respondent 's assertion
that its answer would be repetitious of information
it has already provided the Regional Director
during the investigation of the charges To permit
this to constitute good cause would effectively nul-
lify the requirements of Section 120 20 for any re-
spondent that cooperated at the investigatory stage
Further, we reject Respondent Sorensen Indus-
tries, Inc 's contention that the Board should deny
the General Counsel 's motion because it filed for
Chapter 11 bankruptcy on December 13, 1985
(converted to a Chapter 7 petition on May 18,
1987) It is well settled that the institution of bank-
ruptcy proceedings does not deprive the Board of
jurisdiction or authority to entertain and process an
unfair labor practice case to its final disposition 4
Board proceedings fall within the exception to the
automatic stay provision for proceedings by a gov-
ernmental unit to enforce its police or regulatory
powers 5 As for the Respondent 's assertion that
American Brass and Bronze , Inc and its sharehold-
ers did not have notice of an outstanding unfair
labor practices proceeding prior to its acquisition
of Sorensen Industries, Inc , it is axiomatic that
alter egos are each responsible for the unfair labor
practices of the other without regard to any ele-
ment of notice or knowledge 6
Finally, we deny the Respondent 's request to
hold in abeyance consideration of the present
motion, pending settlement efforts by the Respond-
ent The possible settlement of a case does not pro-
vide an exemption from the requirement to file an
answer Thus settlement efforts are neither cause to
a The Respondent asserts that the allegation that Cullen Machining,
Inc is a single employer or alter ego of Sorensen Industries, Inc was
"dismissed" in Case 4-CA-16357 with no appeal by the Union It further
asserts that despite this dismissal the allegation was included in the con-
solidated complaint at issue here We find nothing faulty in the treatment
of this alter ego allegation In view of the identity of interests of alter
egos, the Board has liberally permitted the addition of an alter ego as a
party (even at the backpay stage of a proceeding) See, e g, BMD Sports-
wear Corp , 283 NLRB 142 fn 1 (1987), Volk & Huxley, 280 NLRB 219
(1986), enfd 817 F 2d 996 (2d Cir 1987), Teckwal Corp , 263 NLRB 892
(1982)
4 Image Systems, 285 NLRB 370, 371 (1987), Olympic Fruit & Produce
Co, 261 NLRB 322, 323 (1982)
a See Image Systems, supra at fn 3, Goldstein Co, 274 NLRB 682
(1985)
s See, e g , George C Shearer Exhibitors Delivery Service, 262 NLRB
622 (1982), enfd mein 714 F 2d 124 (3d Cir 1983), Custom Mfg Co, 259
NLRB 614 (1981)
1133
deny a Motion for Summary Judgment nor to hold
it in abeyance 7
For the above reasons, we fmd the Respondent's
response does not constitute good cause for the
failure to file a timely answer Therefore, in ac-
cordance with Section 102 20 of the Board 's Rules
and Regulations , no good cause having been shown
for the failure to file a timely answer, the allega-
tions of the complaint are deemed to be admitted
and the Board so fords We, accordingly, grant the
General Counsel 's Motion for Summary Judgment8
and deny the Respondent 's request to now file an
answer
On the entire record , the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, Sorensen Industries, Inc, a
Pennsylvania corporation, was engaged in the op-
eration of a foundry including a machine shop at
5th Street, Darby, Pennsylvania , with offices at 313
Elm Street , North Wales, Pennsylvania, and at
Two North Ridge Avenue, Ambler, Pennsylvania,
until June 30, 1987 During the past year, in the
course and conduct of its operations, Sorensen In-
dustries, Inc sold and shipped products valued in
excess of $50,000 directly to points outside the
Commonwealth of Pennsylvania
The Respondent, Cullen Machining , Inc, a New
Jersey corporation, is engaged in the operation of a
machine shop located at 313 Elm Street, North
Wales, Pennsylvania The Respondent, American
Brass and Bronze, Inc, a Pennsylvania corporation,
has been engaged in the operation of a foundry at
5th Street, Darby, Pennsylvania, since May 18,
1987
At all times material , Sorensen Industries, Inc,
Cullen Machining , Inc, and American Brass and
Bronze, Inc have been affiliated business oper-
ations with substantially common ownership,
common management, supervision, and business
purposes, with the same operations and equipment,
and have occupied the same premises By virtue of
these facts , the Respondents , Sorensen Industries,
Inc, Cullen Machining, Inc, and American Brass
and Bronze , Inc , are and have been at all times
T See John Mahoney Construction Co, 274 NLRB 109 fn 1 (1985) (sum-
mary judgment granted in absence of answer notwithstanding pending
settlement discussions)
8 The General Counsel also requests that the Order include a provision
for a visitatonal clause authorizing the Board , for compliance purposes,
to obtain discovery from the Respondent under the Federal Rules of
Civil Procedure under the supervision of the United States court of ap-
peals enforcing this Order Under the circumstances of this case, we find
it unnecessary to include such a clause See Cherokee Marine Terminal,
287 NLRB 1080 (1988)
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
material alter egos and a single employer within
the meaning of the Act.
We find, on the basis of the foregoing, that Sor-
ensen Industries, Inc., Cullen Machining, Inc., and
American Brass and Bronze , Inc. are an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
We further find that United Steelworkers of
America, AFL-CIO, CLC (the International);
Steelworkers Local 5424, its agent (the Local
Union); and Teamsters Local 384 are each labor
organizations within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all times material, the Respondent, acting
through Sorensen Industries, Inc., has recognized
the International as the exclusive representative of
the Respondent's employees in a unit referred to in
article II of the most recent collective-bargaining
agreement (the Agreement) between the Interna-
tional and Sorensen Industries, Inc. (The Agree-
ment is effective from November 1985 to Novem-
ber 15, 1988.) The unit is, and has been, at all times
material, appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of
the Act.
By virtue of Section 9(a) of the Act, the Interna-
tional is and has been , at all times material, the ex-
clusive representative of the unit employees for the
purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms of employment.
On July 31 the Respondent failed to abide by ar-
ticle XXIV of the Agreement by closing its ma-
chine shop in Darby, Pennsylvania, was closed.
From about July 31, 1986, to about November
17, 1986, the Respondent failed and refused to
abide by the superseniority clause of article VII of
the Agreement in connection with the Respond-
ent's layoff of Local Union President Mike Cal-
ciano, an employee of Sorensen Industries, Inc.,
who was laid off when the machine shop in Darby,
Pennsylvania, was closed.
On the following dates in 1986 the International,
acting through Walter J. Kuchinski, an Internation-
al staff representative, in writing, requested Soren-
sen Industries, Inc. to furnish it with certain infor-
mation concerning the closing of Sorensen's ma-
chine shop necessary for, and relevant to, the Inter-
national's performance of its function as the exclu-
sive representative of the unit. On September 5, the
International requested "information in writing
concerning sales orders, shipping logs, all shipping
information, destination of castings, etc." and "the
whereabouts of the machines that were sold public-
ly" as well as information "whether or not, Mr.
Taglianetti is financially sponsoring the owners and
a machine shop in North Wales, Pennsylvania." On
October 30, it requested "all documents that have
information as to size, quantity, quality and any-
thing else to determine our position in respect to
contracting out," and on November 21, it requested
"information for any castings that were machined
after July 30, 1986 at the other machine shop(s)."
Since about September 5, 1986, and continuing
to the present time, the Respondent has failed and
refused to furnish the International the requested
information described above.
Since about November 14, 1986, and continuing
to the present time, the Respondent has been en-
gaged in subcontracting to other firms, including
Cullen Machining, Inc., the machine shop work
performed in its Darby, Pennsylvania machine
shop prior to July 31, 1986. The Respondent has
engaged in this conduct without having afforded
the Union an opportunity to negotiate and bargain,
as the exclusive representative of the unit with re-
spect to such acts and conduct, and the effects of
such acts and conduct.
On February 2, 1987, the International, acting
through Lynne Gerber-Saionz , Esquire , by letter,
requested Sorensen Industries, Inc. to provide cer-
tain information referred to in a "Questionnaire"
consisting of 14 pages attached thereto. This infor-
mation is necessary for, and relevant to, the Inter-
national's performance of its function as the exclu-
sive representative of the unit. Since about Febru-
ary 2, 1987, and continuing to the present time, the
Respondent has failed and refused to furnish the
International the requested information.
By each of the acts and conduct described
above, the Respondent has failed and refused, and
is failing and refusing, to bargain collectively with
the representative of its employees, and the Re-
spondent thereby has been engaging in unfair labor
practices within the meaning of Sections 8(a)(1)
and (5) and 8(d) of the Act.
Since about September 16, 1987, the Respondent,
acting through Cullen Machining, Inc., granted
recognition to and bargained with Teamsters Local
384 as the exclusive representative of the produc-
tion and maintenance employees in the appropriate
unit who were employed at Cullen Machining,
Inc., notwithstanding the fact that Teamsters Local
384 did not represent an uncoerced majority of the
production and maintenance employees in the unit
employed. By these acts, the Respondent has ren-
dered , and is rendering , unlawful assistance and
support to a labor organization, and the Respond-
ent thereby has been engaging in unfair labor prac-
SORENSEN INDUSTRIES 1135
tices within the meaning of Section 8(a)(1) and (2)
of the Act
CONCLUSIONS OF LAW
1 By failing to abide by article XXIV of the
most recent collective-bargaining agreement with
the Union (effective November 1985 to November
15, 1988) by closing its machine shop in Darby,
Pennsylvania, by failing and refusing from about
July 31 to about November 17, 1986, to abide by
the supersenionty clause of article VII of the col-
lective-bargaining agreement in connection with
the Respondent's layoff of Local Union President
Mike Calciano, an employee of Sorensen Indus-
tries, Inc , who was laid off when the machine
shop in Darby, Pennsylvania, was closed, by failing
and refusing to furnish the International the infor-
ination requested on September 5, October 30, No-
vember 21, 1986, and February 2, 1987, which is
necessary and relevant to the International's per-
formance of its function as the exclusive represent-
ative of the unit , by engaging in subcontracting to
other firms , including Cullen Machining , Inc, the
machine shop work performed in its Darby, Penn-
sylvania machine shop prior to July 31, 1986, with-
out having afforded the Union an opportunity to
negotiate and bargain as the exclusive representa-
tive of the unit, with respect to such acts and con-
duct, and the effects of such acts and conduct since
November 14, 1986, and continuing to the present
time, the Respondent has failed and refused, and is
failing and refusing, to bargain collectively with
the representative of its employees, and thereby en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5), Sec-
tion 8(d), and Section 2(6) and (7) of the Act
2 By acting through Cullen Machining, Inc,
granting recognition to and bargaining since Sep-
tember 16, 1987, with Teamsters Local 384 as the
exclusive representative of the production and
maintenance employees in the appropriate unit who
were employed at Cullen Machining , Inc, notwith-
standing the fact that Teamsters Local 384 did not
represent an uncoerced majority of the unit em-
ployees, the Respondent has rendered , and is ren-
dering, unlawful assistance to a labor organization
and thereby engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(2) and (1) and Section 2(6) and (7) of the Act
REMEDY
Having found that Sorensen Industries, Inc,
Cullen Machining, Inc., and American Brass and
Bronze , Inc are alter egos and a single employer
and that the Respondent has violated Section
8(a)(5), (2), and (1) of the Act, we shall order it to
cease and desist and to take certain other affirma-
tive action designed to effectuate the policies of the
Act
Thus, with respect to the violations of Section
8(a)(5), we shall order the Respondent to bargain
on request , including concerning the decision to
subcontract on November 14, 1986 , the machine
shop work performed in its Darby , Pennsylvania
machine shop prior to July 31, 1986, and the effects
of that decision , to abide by the supersenionty pro-
vision of article VII and by article XXIV of its
most recent collective-bargaining agreement with
the Union , and to furnish the Union the informa-
tion requested We shall further order that unit em-
ployees, including Mike Calciano , be made whole
for any loss of pay or other employment benefits
suffered by reason of the unlawful subcontracting
of unit work and the failure to abide by article
XXIV and the supersenionty clause of article VII
of the collective-bargaining agreement Backpay
shall be computed in accordance with the manner
prescribed in F W Woolworth Co, 90 NLRB 289
(1950), with interest as prescribed in New Horizons
for the Retarded 9
Further, with respect to the violations of Section
8(a)(2), we shall order the Respondent to withdraw
and withhold recognition from Teamsters Local
384, as the exclusive bargaining representative of
the unit of production and maintenance employees
at Cullen Machining, Inc
ORDER
The National Labor Relations Board orders that
the Respondent, Sorensen Industries , Inc, Cullen
Machining , Inc, and American Brass and Bronze,
Inc, North Wales, Pennsylvania, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with United Steelworkers
of America, Local Union 5424, AFL-CIO, CLC as
the exclusive bargaining representative of the em-
ployees in the appropriate unit referred to in article
II of its most recent collective-bargaining agree-
ment with the Union (effective November 1985 to
November 15, 1988), failing and refusing to abide
by the supersenionty clause of articles VII and
XXIV of the collective-bargaining agreement, re-
fusing to furnish the Union information that is rele-
vant and necessary to its role as the exclusive bar-
gaining representative of the unit employees, and
9 283 NLRB 1173 (1987) Interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
subcontracting unit work without providing the
Union an opportunity to bargain with respect to
the subcontracting and its effects
(b) Recognizing and bargaining with Teamsters
Local 384 as the exclusive representative of the
unit of production and maintenance employees
who were employed at Cullen Machining, Inc
(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 the Union as the ex-
clusive representative of the employees in the ap-
propriate unit referred to in article II of its most
recent collective-bargaining agreement with the
Union on terms and conditions of employment
(b) On request, bargain with the Union concern-
ing the decision to subcontract on November 14,
1986 , the machine shop work performed in its
Darby, Pennsylvania machine shop pnor to July
31, 1986, and the effects of that decision
(c) On request, furnish the Union information
that is relevant and necessary to its role as the ex-
clusive bargaining representative of the unit em-
ployees
(d) Abide by the supersenionty clause of articles
VII and XXIV of its collective-bargaining agree-
ment with the Union
(e) Make whole unit employees , including Mike
Calciano, for any loss of pay or other employment
benefits they may have suffered by reason of the
unlawful subcontracting of work and failure to
abide by the collective-bargaining agreement, in
conformity with the remedy section of the deci-
sion
(f) Withdraw and withhold recognition from
Teamsters Local 384 as the exclusive bargaining
representative of the unit of production and main-
tenance employees at Cullen Machining, Inc until
the Union has been certified by the Board as their
exclusive bargaining representative
(g) Post at its facility in Darby , Pennsylvania.
copies of the attached notice marked "Appen-
dix "10 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
10 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 "
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
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 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
Steelworkers of America, Local Union 5424, AFL-
CIO, CLC as the exclusive bargaining representa-
tive of the employees in the appropriate unit re-
ferred to in article II of our most recent collective-
bargaining agreement with the Union (effective
November 1985 to November 15, 1988), WE WILL
NOT fail and refuse to abide by article XXIV of the
collective -bargaining agreement by closing our ma-
chine shop in Darby, Pennsylvania , or the super-
seniority clause of article VII, WE WILL NOT refuse
to furnish the Union information that is relevant
and necessary to its role as the exclusive represent-
ative of the unit employees, and WE WILL NOT sub-
contract work performed by employees in the ap-
propriate unit without providing the Union with
prior notice or an opportunity to bargain with re-
spect to the subcontracting and its effects
WE WILL NOT recognize and bargain with Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO, Local Union No 384 , as the exclusive repre-
sentative of the unit of production and maintenance
employees who were employed at Cullen Machin-
ing, Inc
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 as
the exclusive representative of the employees in the
appropriate unit referred to in article II of our
most recent collective-bargaining agreement with
the Union on terms and conditions of employment
WE WILL , on request, bargain with the Union
concerning the decision to subcontract the machine
shop work performed in our Darby, Pennsylvania
SORENSEN INDUSTRIES 1137
machine shop prior to July 31, 1986, and the effects
of that decision
WE WILL abide by the superseniority clause of
articles VII and XXIV of our collective -bargaining
agreement with the Union
WE WILL, on request, furnish the Union informa-
tion that is relevant and necessary to its role as the
exclusive bargaining representative of the unit em-
ployees
WE WILL make whole those unit employees, in-
cluding Mike Calciano, for any loss of pay or other
employment benefits they may have suffered by
reason of our unlawful subcontracting of work and
failure to abide by the collective-bargaining agree-
ment, with interest
WE WILL withdraw and withhold recognition
from Teamsters Local 384 as the exclusive bargain-
ing representative of the unit of production and
maintenance employees at Cullen Machining, Inc
SORENSEN INDUSTRIES , INC, CULLEN
MACHINING. INC, AND AMERICAN
BRASS AND BRONZE, INC