Columbus Auto Parts Co.

National Labor Relations Board - Board Decisions

Feb 24, 1992

306 N.L.R.B. 382 (N.L.R.B. 1992)

382
306 NLRB No. 73
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1991 unless otherwise indicated.
2 The General Counsel’s reply to the response of the Respondent
notes that copies of the motion which were sent by certified mail
to the Respondent and its counsel were not claimed. A respondent’s
failure to claim certified mail is not permitted to defeat the purposes
of the Act. Fletcher Oil Co., 299 NLRB No. 77 fn. 2 (Aug. 23,
1990) (not reported in Board volumes).
3 Our dissenting colleague’s reliance on the seizure of the Re-
spondent’s assets on June 14 to excuse the Respondent’s failure to
file an answer is misplaced. The time for filing an answer expired
on that date. Any answer sent by mail could have been timely filed
only if it had been prepared and posted before the day in question.
Thus, the seizure of assets could not have affected any timely prepa-
ration of such an answer. Moreover, the seizure could not have pre-
vented the Respondent from requesting an extension of time for fil-
ing an answer.
Columbus Auto Parts Company and International
Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America,
UAW, and its Local Union No. 30. Case 9–CA–
28447
February 24, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by the Union on April 12, 1991,
the General Counsel of the National Labor Relations
Board issued a complaint on May 28, 1991,1 against
Columbus Auto Parts Company, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of the
National Labor Relations Act. Although properly
served copies of the charge and complaint, the Re-
spondent has failed to file an answer.
On September 9, the General Counsel filed a Motion
for Summary Judgment. On September 12, the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. On September 25, the Respond-
ent filed a response to the Notice to Show Cause and
a motion for leave to file an answer. On October 11,
the General Counsel filed a reply.
The National Labor Relations Board has delegated
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 Regulations
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
be shown. The complaint states that unless an answer
is filed within 14 days of service, ‘‘all of the allega-
tions in the complaint shall be deemed to be true and
shall be so found by the Board.’’ As evidenced by a
receipt for certified mail, attached to the Motion for
Summary Judgment, the complaint was served on the
Respondent on May 31. Further, the undisputed allega-
tions in the Motion for Summary Judgment disclose
that counsel for the General Counsel notified the Re-
spondent, by letter dated August 28 and admittedly re-
ceived on September 3, that a Motion for Summary
Judgment would be filed unless the Respondent filed
an answer or requested additional time within which to
file an answer by close of business on September 3.
In its response to the Notice to Show Cause, the Re-
spondent, through its counsel, contends that its failure
to file a timely answer was due to the unforeseen fore-
closure on its assets by a secured creditor on June 14.
The Respondent alleges that all records and documents
essential to the filing of an answer were physically
seized on that date. The Respondent further asserts that
it did not receive the General Counsel’s letter regard-
ing its obligation to file an answer or request an exten-
sion of time to do so until September 3, the extended
filing deadline date. The Respondent also contends that
it was not served with the Motion for Summary Judg-
ment.2
We find no merit in the Respondent’s contentions.
Even assuming that a creditor’s action on June 14, the
deadline date for filing an answer to the complaint, in-
cluded the seizure of information needed to prepare an
answer to the complaint, the Respondent offers no suf-
ficient explanation for its failure to file an answer on
or before that date, by stating that it lacked the knowl-
edge necessary to answer the complaint’s allegations,
or to request an extension of time to file an answer.3
In fact, notwithstanding receipt of the complaint and
the August 28 letter, the Respondent made no attempt
to communicate with the Board about this case until
after receipt of the Board’s Notice to Show Cause on
September 23. Under these circumstances, we find that
the Respondent has not shown good cause for its fail-
ure to file a timely answer, and we deny its motion to
file an untimely answer.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, has been engaged in
the manufacture of auto parts at a facility in Ann
Arbor, Michigan. During the 12 months preceding
issuance of the complaint, the Respondent sold and
shipped from its Ann Arbor facility products, goods,
and materials valued in excess of $50,000 directly to
points outside of the State of Michigan. We find that
the Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
383COLUMBUS AUTO PARTS CO.
4 In light of the Respondent’s closure of the Columbus, Ohio facil-
ity where we would ordinarily order the posting of a notice to em-
ployees regarding unfair labor practices and remedies, we shall order
the Respondent to mail signed copies of the notice to the Union and
to all individuals employed in the bargaining unit on July 25, 1989,
the date of closure. Premier Cadillac, 300 NLRB No. 168, slip op.
at 6 (Dec. 31, 1990) (not reported in Board volumes).
5 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
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.’’
and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all times material here, the Union has been the
exclusive collective-bargaining representative, within
the meaning of Section 9(a), of the employees in the
following appropriate unit, which is appropriate for
collective bargaining within the meaning of Section
9(b):
All factory employees [who were employed by
Respondent at its Columbus, Ohio facility], except
employees in the tool and die departments and su-
pervisors as defined in the Act.
The Respondent’s recognition of the Union’s exclu-
sive bargaining representative status has been em-
bodied in successive collective-bargaining agreements,
the most recent of which was effective from May 29,
1985, to June 30, 1989. On July 25, 1989, the Re-
spondent closed its facility at Columbus, Ohio. On No-
vember 12 and 20, 1990, and on February 28, 1991,
the Union requested that Respondent bargain with it
over outstanding grievances which the Respondent had
delayed processing and which arose under the parties’
most recent collective-bargaining agreement. Since No-
vember 12, 1990, and continuing to date, the Respond-
ent has refused to bargain with the Union over the out-
standing grievances.
It is well settled that the unilateral abandonment of
a contractual grievance procedure after a contract ex-
pires violates Section 8(a)(5) of the Act. Bethlehem
Steel Co., 136 NLRB 1500 (1962), enfd. in pertinent
part sub nom. Shipbuilders (Bethlehem Steel) v. NLRB,
320 F.2d 615 (3d Cir. 1963). We therefore find that
by the above conduct the Respondent has refused to
bargain with the Union in violation of Section 8(a)(5).
CONCLUSION OF LAW
By failing and refusing to bargain about grievances
which arose under the parties’ most recent collective-
bargaining agreement, the Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist, and to take certain affirmative action de-
signed to effectuate the policies of the Act.4 We shall
order the Respondent to bargain with the Union over
all outstanding grievances which arose under the par-
ties’ most recent collective-bargaining agreement.
ORDER
The National Labor Relations Board orders that the
Respondent, Columbus Auto Parts Company, Colum-
bus, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain over grievances
which arose under its most recent collective-bargaining
agreement with the Union.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request of the Union, bargain over out-
standing grievances which arose under the parties’
most recent collective-bargaining agreement.
(b) Mail an exact copy of the attached notice
marked ‘‘Appendix’’5 to the Union and to all unit em-
ployees employed by the Respondent immediately
prior to the July 25, 1989 closure of its Columbus,
Ohio facility. Copies of the notice, on forms provided
by the Regional Director for Region 9, shall upon re-
ceipt be signed by the Respondent’s authorized rep-
resentative and shall immediately thereafter be mailed
as directed.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER DEVANEY, dissenting.
Contrary to my colleagues, and under the unusual
circumstances, I would not rule now on the General
Counsel’s Motion for Summary Judgment. Rather, I
would grant the Respondent a 14-day period in which
to file an answer to the complaint, during which period
a ruling on the motion would be held in abeyance. The
Respondent has, in my view, shown sufficient good
cause for not yet having filed an answer to warrant a
final opportunity to do so now. Specifically, as a result
of the lawful seizure of the Respondent’s assets by a
secured creditor in June 1991, both the Respondent
and its counsel in his own right have apparently until
recently been physically precluded from obtaining or
getting access to files and documents relevant to this
case. In an affidavit submitted with the Respondent’s
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 My colleagues characterize my approach here as an excusal of
the Respondent’s failure to file a timely answer to the complaint or
at least to file a request for an extension of time. My focus is on
the rather unique circumstances, discussed above, which surround
the Respondent’s failure to file a timely answer. I have not fixed on
the Respondent’s procedural failures to date as outcome-determina-
tive events which, in this particular case, must lead inexorably to the
grant of summary judgment at this time.
September 23, 1991 response to the Board’s Notice to
Show Cause why summary judgment should not be
granted, the Respondent’s counsel states that although
he now has possession of his files that were seized
along with the Respondent’s assets and files, he has’’
not as yet been able to obtain’’ the Respondent’s
records and files directly relating to this case. Inas-
much as the Respondent’s counsel has thus indicated
that some measurable progress has been made in the
Respondent’s attempts to get possession of or access to
its files and documents relevant to this case, and also
inasmuch as it does not appear that the Charging Party
or the General Counsel would be measurably preju-
diced by an additional 14-day delay in this proceeding,
I would grant such an additional period of time to the
Respondent in which to file an answer to the com-
plaint.1
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 or-
dered us to mail and abide by this notice.
WE WILL NOT refuse to bargain over grievances
which arose under the most recent collective-bar-
gaining agreement with the International Union, United
Automobile, Aerospace and Agricultural Workers of
America, UAW, and its Local Union No. 30 for em-
ployees in the following appropriate unit:
All factory employees [who were employed by
Columbus Auto Parts Company at its Columbus,
Ohio facility], except employees in the tool and
die departments and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union, as the
exclusive representative of all unit employees, over
outstanding grievances which arose under the most re-
cent collective-bargaining agreement with the Union.
COLUMBUS AUTO PARTS COMPANY