Stine Scovil Construction Co.

National Labor Relations Board - Board Decisions

Mar 28, 1984

269 N.L.R.B. 465 (N.L.R.B. 1984)

STINE SCOVIL CONSTRUCTION CO.
Stine Scovil Construction Co., Inc. and International
Association of Bridge, Structural and Ornamen-
tal Ironworkers Local No. 10, AFL-CIO. Case
17-CA- 11592
28 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union, International
Association of Bridge, Structural and Ornamental
Ironworkers Local No. 10, AFL-CIO, 27 April
1983, the General Counsel of the National Labor
Relations Board issued a complaint 6 July 1983,
against Stine Scovil Construction Co., Inc., the
Company, the Respondent, alleging that it has vio-
lated Section 8(a)(1) and (5) and Section 8(d) of the
National Labor Relations Act. Although properly
served copies of the charge and complaint, the
Company has failed to file an answer.
On 15 August 1983 the General Counsel filed a
Motion for Summary Judgment. On 17 August
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
Company filed no response. The allegations in the
motion are therefore undisputed.
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 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 complaint shall
be deemed to be admitted to be true and shall be so
found by the Board." Further, the undisputed alle-
gations in the Motion for Summary Judgment dis-
close that Board Agent Eric Wagner, by personal
service, notified the Company that unless an
answer was received immediately a Motion for
Summary Judgment would be filed.
Notwithstanding the absence of good cause for
the failure to file a timely answer, we decline to
grant the General Counsel's Motion for Summary
Judgment.
Alleged Unfair Labor Practices
The Builders Association, an organization of sev-
eral employers, and the Union have been parties to
a collective-bargaining agreement covering the
wages, hours, and terms and conditions of employ-
ment of various employees of the Association's em-
ployer-members. The most recent contract is effec-
269 NLRB No. 75
tive from 1 April 1981 to 31 March 1984. On or
about 14 January 1981, the Company, by stipula-
tion with the Union, agreed to be bound by the
then current and all subsequent contracts and
fringe benefit agreements between the Union and
the Association.
Since on or about 18 April 1982, the Union, by
letter, has requested of, and been refused by, the
Company's payroll records of subcontractor Hen-
ningsen Construction Inc., which information is
necessary for the Union in its performance as the
exclusive bargaining representative of the unit.
Since December 1982, the Company has refused
to abide by article 15 of the contract by subcon-
tracting to a corporation which is not abiding by
the wages, hours, and other lawful economic work-
ing conditions provided for in the contract.
The complaint alleges that the following consti-
tutes a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All journeymen and apprentice ironworkers
employed by the Employer in the following
counties in Missouri: Andrew, Atchison,
Barton, Bates, Benton, Buchanan, Caldwell,
Carroll, Cass, Cedar, Chariton, Christian,
Clay, Clinton, Cooper, Dade, Dallas, Daviess,
Dekalb, Gentry, Greene, Grundy, Harrison,
Henry, Hickory, Holt, Howard, Jackson,
Johnson, Lafayette, Linn, Livingston, Mercer,
Moniteau, Morgan, Nodaway, Ozark, Pettis,
Platte, Polk, Randolph, Ray, St. Clair, Saline,
Sullivan, Taney, Vernon, Webster, Worth,
Wright and portions of Boone, Camden,
Douglas, Laclede and Miller; and the follow-
ing counties in Kansas: Allen, Anderson, Atch-
ison, Bourbon, Brown, Coffey, Doniphan,
Douglas, Franklin, Jackson, Jefferson, John-
son, Leavenworth, Linn, Lyon, Marshall,
Miami, Nemaha, Osage, Pottawatomie, Riley,
Shawnee, Wabaunsee, Wyandotte, and por-
tions of Neosho and Crawford counties.
Thus, the complaint alleges that the Company's
failure and refusal to provide necessary information
and its subcontracting to a corporation not abiding
by the contract violated Section 8(a)(1) and (5) and
Section 8(d) of the Act.
We note that the complaint fails to establish, by
allegations or statements of fact, information neces-
sary to determine that the Respondent has violated
Section 8(a)(l) and (5) of the Act. Absent from the
complaint are allegations or statements of fact that
the Union is the lawful representative of the Com-
pany's employees under Section 9(a) of the Act;
that the agreement between the parties is or not an
465
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(f) contract; that describe article 15 and its lawful-
ness under Section 8(e)'s proviso.
Accordingly, we decline to grant the General
Counsel's Motion for Summary Judgment and
remand the proceeding to the Regional Director
for appropriate action.
ORDER
It is ordered that this proceeding be remanded to
the Regional Director for Region for appropriate
action.
MEMBER ZIMMERMAN, dissenting.
Contrary to my colleagues, I would grant the
General Counsel's Motion for Summary Judgment.
As in the instant case, the General Counsel need
only allege facts which, if found to be true, are
necessary and sufficient to support a conclusion
that an unfair labor practice has been committed.
The General Counsel is not required to allege in
his pleadings, or establish in the first instance at
trial, the nonexistence of facts which, if they did
exist, might preclude an unfair labor practice find-
ing. Thus, contrary to the opinion of my colleagues
the General Counsel is not required to allege ex-
pressly, inter alia, (1) that the Union is not unlaw-
fully representing the Respondent's employees; (2)
that the contract in force between the Respondent
and the Union is not within the scope of Section
8(f); or (3) or that the contract is not violative of
Section 8(e). These are matters for respondents to
raise in the affirmative, if applicable, in answers to
complaints and rebuttal at trial.
In the instant case, the Respondent, by its failure
to answer the complaint, has admitted, inter alia,
that (a) it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act; (b) that the Union is a labor organization
within the meaning of the Act; (c) that the Re-
spondent has agreed to be bound by the current
collective-bargaining agreement between the Union
and the Builders Association; (d) that the Respond-
ent has refused the Union's request that it furnish
the Union with the payroll records of one of the
Respondent's subcontractors, so as to enable the
Union to assure compliance with the terms of its
collective-bargaining agreement; (e) that the infor-
mation which the Respondent has refused to give
the Union is necessary for the Union's performance
of its function as the exclusive collective-bargaining
representative of the Respondent's employees; and
(f) that the Respondent has refused to abide by the
collective-bargaining agreement to which it is
bound, by subcontracting to a person or corpora-
tion who is not abiding by the wages, hours, and
other lawful economic working conditions con-
tained in that collective-bargaining agreement.
Thus, the Respondent has admitted to facts which
are both necessary and sufficient for a conclusion
that the Respondent has violated Section 8(a)(5)
and (1) of the Act. There being no material facts in
dispute, the General Counsel's Motion for Summa-
ry Judgment should be granted.
466