Carpentry Contractors

National Labor Relations Board - Board Decisions

Aug 22, 1994

314 N.L.R.B. 824 (N.L.R.B. 1994)

824
314 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All subsequent dates are 1994 unless otherwise stated.
2 The April 3 letter is inadvertently dated ‘‘1993.’’
3 Sec. 102.20 of the Rules and Regulations states, in full:
The respondent shall, within 14 days from the service of the
complaint, file an answer thereto. The respondent shall specifi-
cally 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 ex-
plained 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.
4 Eric Cockrell is not identified in the record.
Carpentry Contractors, Inc. and Local Union No.
1234, United Brotherhood of Carpenters and
Joiners of America, AFL–CIO. Case 7–CA–
35375
August 22, 1994
DECISION AND ORDER DENYING MOTION
FOR SUMMARY JUDGMENT AND
REMANDING
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
Upon a charge filed by the Union on December 27,
1993, the Acting General Counsel of the National
Labor Relations Board issued a complaint on February
3, 1994,1 against Carpentry Contractors, Inc., the Re-
spondent, alleging that it has violated Section 8(a)(1)
and (5) of the National Labor Relations Act. Copies of
the charge and complaint were properly served on the
Respondent. The Respondent filed letters apparently
purporting to be answers to the complaint on March 15
and April 3.2 On April 15, the General Counsel filed
a Motion for Default Summary Judgment with exhibits
attached, asserting, inter alia, that the Respondent has
failed and refused to file a ‘‘sufficient Answer to the
Complaint.’’
On April 19, 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 Re-
spondent filed no response to the notice. The allega-
tions in the motion are therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
1. Procedural history
The February 3 complaint alleges, inter alia, that the
Respondent has violated Section 8(a)(1) and (5) of the
Act by failing and refusing, since about June 27, 1993,
to pay bargaining unit employees the wages required
by the Respondent’s collective-bargaining agreement
with the Union, and to make contributions to the
Union and to the Union’s Fringe Benefit Trust Funds
on behalf of bargaining unit employees, as mandated
by the collective-bargaining agreement. The Respond-
ent did not file an answer to the complaint within the
14-day time period set forth in Section 102.20 of the
Board’s Rules and Regulations.3
On March 2, the Board’s Regional Attorney notified
the Respondent that an answer to the complaint had
not been received, that the time for filing an answer
was being extended to March 16, and that if no answer
was filed by that deadline, the General Counsel would
seek a default judgment from the Board against the
Respondent, which, if granted, would result in all of
the allegations in the complaint being deemed to be
admitted to be true.
On March 15, the Respondent’s president and
owner, Bryson Maddick, wrote to the Regional Direc-
tor, stating in pertinent part:
It is my understanding that I may request a time
extension on this hearing, to May 2, 1994. . . .
I will explain briefly my answer to each allega-
tion as I explained in my affidavit to Eric
Cockrell.4
Charge 1. Payed [sic] employees wages according
[to] their job sites (wages are different)
2. Have payed [sic] some fringes, but
am late on some.
On March 17, the Regional Director issued an order
extending the time for the Respondent to file an an-
swer to the complaint to April 4.
On April 3, Maddick again wrote to the Regional
Director, stating in pertinent part:
In answer to the complaint filed against Car-
pentry Contractors Inc. by Carpenters Local 1234.
Complaint #1
Due to the various wage scales regarding type
of construction (commercial, residential, multi-
family[)] and apprentices and work in the Ann
Arbor area.
825CARPENTRY CONTRACTORS
5 There are two attachments to the Respondent’s April 3 letter:
1. A ‘‘To Whom It May Concern’’ letter dated March 11, styled
(but not in fact) ‘‘AFFIDAVIT,’’ with 6 signatures, stating:
[typed]
Let it be known that as a Rough Carpenter I am aware of the
variances in pay scales designated by the Carpenters Union for
working on residential, multi family, and commercial, we also
work in the Ann Arbor area under their wage scale.
I am in agreement with the wage I am being paid.
[handwritten]
I an [sic] agreement with Carpenters [two letters, indecipher-
able]
[6 signatures, one of which is Bryson Maddick] [handwritten]
2. A typed or printed page, showing different hourly wage scales
effective August 16, 1993 for Detroit journeyman and apprentice
carpenters according to (a) multi-family—condominium and (b)
single family dwelling projects.
6 See Tri-Way Security, 310 NLRB 1222 (1993).
7 See Dismantlement Consultants, 312 NLRB 650 (1993); Steeltec,
Inc., 302 NLRB 980 (1991).
8 See Acme Building Maintenance, 307 NLRB 358 (1992).
9 See Dismantlement Consultants, supra; Steeltec, supra.
10 See Dismantlement Consultants, supra; Tri-Way Security, supra;
Acme Building Maintenance, supra; Steeltec, supra.
The Respondent’s letters, on the other hand, do seem to concede
at least some degree of failure to pay contractually required fringe
benefits, as alleged in the complaint. Nevertheless, because there are
material factual allegations at issue, as discussed above, summary
judgment is not appropriate in this case.
Finally, although it does not appear that the Respondent’s letters
were served on the Charging Party as required by Sec. 102.21 of the
Board’s Rules and Regulations, we again note the pro se basis on
which the Respondent was proceeding. See Dismantlement Consult-
ants, supra; Tri-Way Security, supra; Acme Building Maintenance,
supra.
Enclosed is a[n] affidavit from employees and
wage scale.5
Complaint #2
We have contributed fringes for 1993 but are
still behind.
On April 7, the Regional Attorney again wrote to
Maddick, acknowledging receipt of what the Regional
Attorney described as Maddick’s April 3 ‘‘Response to
Complaint,’’ and advising him that ‘‘since your April
3 . . . Response is intended to be an answer to the
complaint herein, it is not sufficient for this purpose.’’
More specifically, the Regional Attorney told Maddick
that his letter was deficient because it failed to respond
to each complaint paragraph by admitting or denying
the allegations, or by offering an explanation as to why
an answer could not be provided. The Regional Attor-
ney further advised Maddick that unless he complied
with the Board’s Rules and Regulations in regard to
filing an appropriate answer by April 11, a Motion for
Default Judgment would be filed with the Board. The
Respondent did not respond to the Regional Attorney’s
letter.
In his motion, the General Counsel asserts that the
Respondent’s March 15 and April 3 letters are not suf-
ficient answers to the complaint because they do not
comply with Section 102.20 of the Board’s Rules and
Regulations, supra. Thus, the General Counsel con-
tends that no sufficient answer to the complaint has
been filed, and that, in accordance with the provisions
of Section 102.20 of the Board’s Rules and Regula-
tions, all allegations in the complaint should be
deemed to be admitted to be true and should be so
found by the Board, and that the Respondent should
consequently be found to have violated Section 8(a)(1)
and (5) of the complaint, as alleged.
2. Discussion
The Board, having considered the matter, finds that
summary judgment is not appropriate here. The Re-
spondent’s March 15 and April 3 pro se letters reason-
ably, albeit not artfully, appear to be denials of the
complaint allegation that the Respondent has been fail-
ing and refusing to pay bargaining unit employees the
wage rates required by the collective-bargaining agree-
ment. Thus, although—as the General Counsel con-
tends—the Respondent’s letters are not in a form that
comports with Section 102.20 of the Board’s Rules
and Regulations, the letters do respond effectively in
the negative to the complaint allegations containing the
operative facts of the alleged failure to pay contrac-
tually required wage rates.6 And the letters do attempt
to provide an explanation for the Respondent’s conduct
in regard to wage rates paid.7
The Respondent’s letters do not, to be sure, respond
to each and every allegation in the complaint.8 Indeed,
they do not address most of the facts alleged in the
complaint. However, even if those unaddressed facts
were deemed to be admitted to be true, the Respond-
ent’s effective denials of the substance of the com-
plaint allegation of failure to pay contractual wages has
raised substantial and material issues of fact warranting
a hearing before an administrative law judge.9
Under the circumstances, because the Respondent’s
letters were filed without benefit of counsel, and also
because they constitute a sufficiently clear denial of
the allegation regarding failure to pay contractual wage
rates, we will not preclude a determination on the mer-
its simply because of the Respondent’s failure to com-
ply with all of our procedural rules.10
Based on all of the above considerations, we con-
clude that the General Counsel’s Motion for Summary
Judgment should be denied.
ORDER
The General Counsel’s Motion for Summary Judg-
ment is denied.
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 7 for fur-
ther appropriate action.
MEMBER STEPHENS, dissenting in part.
In my view the Respondent’s letters answering the
complaint substantially admit that the Respondent had
failed to adhere to the contractual requirement of time-
ly payments to fringe benefit trust funds. I would
therefore grant the General Counsel’s Motion for Sum-
mary Judgment as to those allegations, finding a viola-
tion of Section 8(a)(5) and (1) on that basis, and leav-
ing to compliance the matter of what sums must be
paid to remedy it. I agree with my colleagues that the
Respondent has raised a factual issue as to the wage
rate allegations and thus I join them in denying sum-
mary judgment as to that portion of the complaint.