All Steel Iron Works, Inc.

National Labor Relations Board - Unpublished Board Decisions

Jul 13, 2021

13-CA-261682 (N.L.R.B. Jul. 13, 2021)

McKE
Bedford Park, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ALL STEEL IRON WORKS, INC.
and Case 13-CA-261682
IRON WORKERS REGIONAL LOCAL UNION NO. 853
ORDER DENYING MOTION FOR RECONSIDERATION
On February 9, 2021, the National Labor Relations Board, by a three-member
panel, issued a Decision and Order1 in this proceeding, granting the General Counsel’s
motion for default judgment. The Board found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain collectively
and in good faith with Iron Workers Regional Local Union No. 853 (the Union) and by
failing and refusing to furnish the Union with information that was relevant and
necessary to its role as the exclusive collective bargaining representative of the unit
employees. The Board ordered the Respondent to, among other things, recognize and,
on request, bargain with the Union and provide the Union with the information it
requested. On February 11, 2021, the Acting General Counsel filed a motion for
reconsideration.2
1 370 NLRB No. 81.
2 The document filed by the General Counsel is styled “Motion to Clarify Default
Judgment.” We construe it as a motion for reconsideration pursuant to Sec. 102.48 of
the Board’s Rules and Regulations.
2
The Board has delegated its authority in this proceeding to a three-member
panel.
In his motion, the Acting General Counsel asserts that the Board erred by failing
to address in the underlying decision the allegation that the Respondent violated
Section 8(a)(5) and (1) by laying off eight named employees. The Acting General
Counsel asks the Board to modify the Decision and Order by including the layoff
violation and ordering the Respondent to offer reinstatement to the laid-off employees
and make them whole, as requested in the first amended complaint.
The First Amended Complaint Allegations
The first amended complaint alleges, in pertinent part, as follows:
6(a) The Respondent laid-off the following employees on about the date set forth
opposite their respective name:
Eric Fields November 11, 2019
Charles Tinzie December 6, 2019
Jose Garcia December 6, 2019 and January 14, 2020
Sergio Sanchez January 15, 2020
Mike Barowski January 17, 2020
Daniel Jelinek March 2020
Kyle McClelland March 2020
Eduardo Marin June 2020
(b) About January 3, 2020, by email to the Union, the Respondent informed the
Union that the Respondent was closing its business effective January 31, 2020.
(c) About January 3, 2020, by e-mail to the Union, the Respondent withdrew its
recognition of the Union as the exclusive collective-bargaining representative of the unit
effective January 31, 2020.
. . . .
3
9. By the conduct described above in paragraphs 6 through 8, the Respondent
has been failing and refusing to recognize and bargain collectively and in good faith with
the exclusive collective-bargaining representative of its employees in violation of
Section 8(a)(1) and (5) of the Act.
. . . .
11. As part of the remedy for the unfair labor practices alleged above in
paragraphs 6 and 7, the General Counsel seeks an order requiring the Respondent to
offer reinstatement and make whole the employees listed in paragraph 6(a). The
General Counsel further seeks such other relief as may be appropriate to remedy the
unfair labor practices alleged.
Analysis
As indicated above, the complaint alleges that the Respondent laid off the
employees named in paragraph 6(a), and that this conduct violated Section 8(a)(5) and
(1). We find that the complaint does not set forth a sufficiently clear or specific factual
basis to determine whether the conduct violated the Act. Specifically, the complaint fails
to allege that the laid-off employees are employees in the bargaining unit represented
by the Union, that the layoffs are mandatory subjects of bargaining, or that the
Respondent failed to provide the Union notice and an opportunity to bargain over the
decision to lay off employees.3 In these circumstances, we find that default judgment
3 To the extent the complaint suggests that the Respondent also violated Section
8(a)(5) and (1) by refusing to notify and bargain with the Union over the closure of the
Respondent’s facility, we would deny the Acting General Counsel’s motion for default
judgment, as the bare assertions of the complaint do not support a cause of action
given the Supreme Court's decision in First National Maintenance Corp. v. NLRB, 452
U.S. 666 (1981). See Cannon Valley Woodwork, 333 NLRB 97, 98 fn. 1 (2001).
4
would be inappropriate as to this allegation. See Plaza Properties of Michigan, Inc., 340
NLRB 983, 985-986 (2003).
Having duly considered the matter, the Board finds that the Acting General
Counsel’s motion fails to present “extraordinary circumstances” warranting
reconsideration under Section 102.48(d)(1) of the Board's Rules and Regulations.
Accordingly, we shall deny the motion. However, this denial is without prejudice, and
nothing herein precludes the Acting General Counsel from amending the complaint to
address this pleading deficiency. In addition, a new hearing is not required if, in the
event of an amendment to the complaint, the Respondent again fails to answer, thereby
admitting evidence that would permit the Board to find the violations alleged and order
an appropriate remedy. In such circumstances, the Acting General Counsel may renew
the motion for default judgment with respect to the amended complaint allegations. See,
e.g., GTS Ambulance Transportation, LLC and ROL Ambulance, LLC, 367 NLRB No.
82 (2019), slip op. at 1.
IT IS ORDERED, therefore, that the Acting General Counsel’s motion for
reconsideration is denied.
Dated, Washington, D.C. July 13, 2021
_________________________________
Lauren McFerran, Chairman
_________________________________
Marvin E. Kaplan, Member
_________________________________
William J. Emanuel, Member
NATIONAL LABOR RELATIONS BOARD