Sullivan Magee & Sullivan, Inc.

National Labor Relations Board - Board Decisions

May 10, 1977

229 N.L.R.B. 543 (N.L.R.B. 1977)

SULLIVAN MAGEE & SULLIVAN, INC.
Sullivan Magee & Sullivan, Inc., Magee Blauvelt
Corp., SMS Contractors, Patrick J. Magee, and
John F. Magee and Local 964, United Brotherhood
of Carpenters and Joiners of America. Cases 2-
CA-14523 and 2-CA-14524
May 10, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
Upon charges and amended charges filed on
September 30 and October 29, 1976, respectively, by
Local 964, United Brotherhood of Carpenters and
Joiners of America, herein called Local 964, and duly
served on Magee Blauvelt Corp., herein called MB;
SMS Contractors, herein called SMS; Patrick J.
Magee and John F. Magee and on Sullivan Magee &
Sullivan, Inc., herein called Sullivan, collectively
referred to as Respondents, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 2, issued an order consolidating
cases, complaint and notice of hearing on November
18, 1976, against Respondents alleging that Respon-
dents had engaged in and were engaging in unfair
labor practices affecting commerce within the mean-
ing of Section 8(a)(l) and (5) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charges, amended charges, consolidat-
ed complaint and notice of hearing before an
Administrative Law Judge were duly served on the
parties to this proceeding.
On January 17, 1977, counsel for the General
Counsel filed a Motion for Summary Judgment and
petition in support thereof, duly served on Respon-
dents, based on Respondents' failure and refusal to
file a timely answer to the consolidated complaint as
required by Section 102.20 and 102.24 of the Board's
Rules and Regulations, Series 8, as amended.
Subsequently, on January 26, 1977, Respondents
filed a motion to vacate default and permit filing of
answer and petition in support thereof, attaching an
answer. Counsel for the General Counsel and for
Local 964 each filed an opposition to Respondents'
motion on February 3, 1977. On February 4, 1977,
the Board issued an order transferring the proceed-
ings to the Board and a Notice To Show Cause.
Respondents then filed a memorandum in response
to Notice To Show Cause on February 18, 1977.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
229 NLRB No. 76
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
which case the respondent shall so state, such
statement operating as a denial. All allegations in
the complaint, if no answer is filed, or any
allegation in the complaint not specifically denied
or explained in an answer filed, unless the
respondent shall state in the answer that he is
without knowledge, shall be deemed to be
admitted to be true and shall be so found by the
Board, unless good cause to the contrary is
shown.
The order consolidating cases, complaint and
notice of hearing issued on November 18, 1976, and
duly served on Respondents, specifically stated that
unless an answer was filed to the consolidated
complaint within 10 days from service thereof"all of
the allegations in the Consolidated Complaint shall
be deemed to be admitted by it to be true and may
be so found by the Board." Further, according to the
petition in support of the Motion for Summary
Judgment, counsel for the General Counsel sent on
December 16, 1976, a registered letter which was
duly served on Respondents, with a copy to their
attorneys, informing them that an answer had not
been received and, thereafter, on January 5, 1977, he
telephoned Mr. Edward F. Breslin, Respondents'
attorney, who stated that he had not filed an answer
because he had not been paid by his clients.
Subsequently, on January 12, 1977, the Acting
Regional Director issued a certification which stated,
inter alia, that Respondents had not filed an answer
to the consolidated complaint and no extension of
time to answer had been requested or granted.
Thereafter, on January 26, 1977, Respondents
moved to vacate their default and to permit the filing
of the answer attached thereto which denied in part
and admitted in part the allegations of the consoli-
dated complaint and which alleged affirmative
defenses. In their oppositions, counsel for the
General Counsel and for Local 964 each alleged, in
substance, that Respondents have shown no good
cause for failure to file a timely answer to the
consolidated complaint and disputed Respondents'
affirmative defenses.
In the response to Notice To Show Cause which
contained a verified statement of facts supported by
affidavits of John F. Magee and Patrick J. Magee, it
543
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is stated that the Magees "understood that an
Answer to the NLRB Complaints had been filed in
November, 1976, on behalf of Sullivan, Magee,
Sullivan, Inc., Magee Blauvelt Corp., SMS Contrac-
tors, Patrick J. Magee and John F. Magee." The
response did not offer any explanation for the failure
to file a timely answer or to request an extension of
time for filing an answer. The reason offered by
Respondents' counsel for not filing an answer
because he had not been paid and the Magees'
understanding that an answer had in fact been filed
in November 1976 do not constitute good cause
under our rules for failure to timely file the answer.'
As Respondents have not filed an answer within 10
days from the service of the consolidated complaint,
and as no good cause to the contrary has been
shown, in accordance with rules set forth above, the
allegations of the consolidated complaint herein are
deemed to be admitted to be true and are so found to
be true. Accordingly, we shall grant the Motion for
Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
The Respondent corporations, Sullivan, MB, and
SMS, are, and have been, affiliated businesses with
common officers, ownership, directors, and opera-
tors, constituting a single-integrated business enter-
prise, whose directors and operators formulate and
administrate a common labor policy for the three
named companies, affecting the employees of said
companies. Respondents Patrick J. Magee and John
F. Magee at all times material herein have been and
are now officers, agents, and sole stockholders of
Respondent Sullivan. During the past calendar year,
a representative period, Sullivan, in the course and
conduct of its business, purchased and caused to be
transported and delivered to its construction jobsites
lumber and other goods and materials valued in
excess of $50,000, of which goods and materials
valued in excess of $50,000 were transported and
delivered to its construction jobsites in interstate
commerce directly from States of the United States
other than the State in which it is located.
II. THE LABOR ORGANIZATION INVOLVED
Local 964, United Brotherhood of Carpenters and
Joiners of America, is a labor organization within the
meaning of Section 2(5) of the Act.
I Cleveland Lithographers and Photoengravers International Union, Local
No. 24-P (Art Gravure Corporation of Ohio), 194 NLRB 636 (1971); Aaron
II1. THE UNFAIR LABOR PRACTICES
On May 5 and June 1, 1975, Sullivan and SMS
executed agreements with Local 964 which are
identical to those previously executed by Local 964
with a multiemployer association, and since May 5
and June 1, 1975, and continuing to date, Local 964
has been, and is now, the exclusive bargaining
representative of the following appropriate unit of
Respondents' employees:
All carpenter construction employees of Respon-
dents, exclusive of all other employees and all
supervisors as defined in Section 2(11) of the Act.
Since on or about August 1, 1976, Respondent has
(a) failed and refused to honor and comply with the
contractual provisions for (1) membership in Local
964 as a condition of employment by the employees
covered by such agreement, (2) payment by Respon-
dents of certain wage scales and payments in the
form of contributions for contractual pension,
welfare, vacation, and supplementary wage benefit
funds on behalf of said employees, and (3) placement
of a job steward on construction jobs, and (b) has
failed and refused to recognize and bargain with
Local 964 as the collective-bargaining representative
of the employees covered by said agreement.
Accordingly, we find that by the aforesaid conduct
Respondents have, since August 1, 1976, and at all
times thereafter, refused to bargain collectively with
Local 964 as the exclusive representative of the
employees in the appropriate unit, and, by such
refusal, Respondents have engaged in and are
engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondents set forth in section
III, above, occurring in connection with their
operations described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondents have engaged in
and are engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that they cease and desist therefrom and
Convalescent Home, 194 NLRB 750 (1971); and Ancorp National Senrvices,
Inc., Casco Division, 202 NLRB 513 (1973).
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SULLIVAN MAGEE & SULLIVAN, INC.
take certain affirmative action designed to effectuate
the policies of the Act.
To remedy Respondents' violations of Section
8(a)(5) and (1) of the Act, we shall order, in addition
to the specific cease-and-desist provisions, that they
honor and comply with the provisions of the
agreement with Local 964 and make back payments
to employees as to certain wage scales and back
payments due to the contractual pension, welfare,
vacation, and supplementary wage benefits funds, as
required by said agreement.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondents, Sullivan Magee & Sullivan, Inc.,
Magee Blauvelt Corp., SMS Contractors, Patrick J.
Magee, and John F. Magee, constitute a single
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local 964, United Brotherhood of Carpenters
and Joiners of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All carpenter construction employees of Res-
pondents, exclusive of all other employees and all
supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since May 5 and June 1, 1975, and continuing
to date, Local 964 has been, and is now, the exclusive
bargaining representative of all employees in the
aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing since August 1, 1976, and at all
times thereafter, to recognize and bargain collectively
with Local 964 as the exclusive representative of the
employees in the appropriate unit, and by refusing to
honor and comply with the provisions of their
contract with Local 964, Respondents have engaged
in and are engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
6. By the acts described in section III, Respon-
dents have refused to recognize and bargain with
Local 964 and have interfered with, restrained, and
coerced their employees in the exercise of rights
guaranteed in Section 7 of the Act and thereby have
engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)( ) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
Sullivan Magee & Sullivan, Inc., Magee Blauvelt
Corp., SMS Contractors, Patrick J. Magee, and John
F. Magee, Nanuet and Stony Point, New York, their
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Local 964,
United Brotherhood of Carpenters and Joiners of
America, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All carpenter construction employees of Respon-
dents, exclusive of all other employees and all
supervisors as defined in Section 2(1 1) of the Act.
(b) Refusing to honor and comply with the terms of
the collective-bargaining agreement executed on or
about May 5 and June 1, 1975, with Local 964,
United Brotherhood of Carpenters and Joiners of
America, including the placement of a job steward
on construction sites, the requirement of membership
in the aforesaid labor organization as a condition of
employment by the employees covered by the
agreement, and the payment of certain wage scales
and payments in the form of contributions for
contractual pension, welfare, vacation, and supple-
mentary wage benefit funds on behalf of such
employees, as required by said agreement.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, recognize and bargain with the
above-named labor organization as the exclusive
bargaining representative of all employees in the
aforesaid appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment.
(b) Honor and comply with all terms of the
collective-bargaining agreement referred to in para-
graph l(b), above, including the placement of a job
steward on construction sites and the requirement of
membership in the aforesaid labor organization as a
condition of employment by employees covered by
the agreement, and make all back payments to
employees as to wage scales, and all back payments
in the form of contributions for contractual pension,
welfare, vacation, and supplementary wage benefit
funds on behalf of such employees, as required by
said agreement.
545
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its place of business at 20 Old Turnpike
Road, Nanuet, New York, and Gatehill Road, Stony
Point, New York, copies of the attached notice
marked "Appendix." 2 Copies of said notice, on
forms provided by the Regional Director for Region
2, after being duly signed by Respondents' represen-
tative, shall be posted by Respondents immediately
upon receipt thereof, and be maintained by them for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondents to insure that said notices are
not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith.
2 In the event that 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 National 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively concerning rates of pay, wages, hours,
and other terms and conditions of employment
with Local 964, United Brotherhood of Carpen-
ters and Joiners of America, as the exclusive
bargaining representative of the employees in the
bargaining unit described below.
WE WILL NOT refuse to honor and comply with
the terms of the collective-bargaining agreement
executed on or about May 5 and June 1, 1975,
with the above-named Union, including the
placement of a job steward on construction sites,
the requirement of membership in the aforesaid
labor organization as a condition of employment
by the employees covered by the agreement, and
the payment of certain wage scales and payments
in the form of contributions for contractual
pension, welfare, vacation and supplementary
wage benefit funds on behalf of such employees,
as required by said agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, recognize and bargain
with the above-named labor organization as the
exclusive bargaining representative of all employ-
ees in the aforesaid appropriate unit with respect
to rates of pay, wages, hours, and other terms and
conditions of employment. The bargaining unit
is:
All carpenter construction employees of
Respondents, exclusive of all other employ-
ees and all supervisors as defined in Section
2(11) of the Act.
WE WILL honor and comply with all terms of
the collective-bargaining agreement referred to
above, including the placement of a job steward
on construction sites and the requirement of
membership in the aforesaid labor organization as
a condition of employment by employees covered
by the agreement, and make all back payments to
employees as to wage scales, and all back
payments in the form of contributions for
contractual pension, welfare, vacation, and sup-
plementary wage benefit funds on behalf of such
employees, as required by said agreement.
SULLIVAN MAGEE &
SULLIVAN, INC., MAGEE
BLAUVELT CORP., SMS
CONTRACTORS, PATRICK
J. MAGEE, AND JOHN F.
MAGEE
546