Daywork Fire Protection, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1990

299 N.L.R.B. 328 (N.L.R.B. 1990)

328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Daywork Fire Protection, Inc. and Road Sprinkler
Fitters, Local Union No. 669, U.A., AFL-CIO.
Case 22-CA-16722
July 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon a charge filed by the Union, Road Sprin-
kler Fitters, Local Union No 669, United Associa-
tion of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United States
and Canada, AFL-CIO, the General Counsel of
the National Labor Relations Board issued a com-
plaint on February 20, 1990, 1 against Daywork
Fire Protection, Inc , the Respondent, alleging that
it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act
Although properly served with copies of the
charge and complaint, the Respondent has failed to
file an answer
On March 19, the General Counsel filed a
Motion for Summary Judgment On March 21, the
Board issued an order transfernng the proceeding
to the Board and a Notice to Show Cause why the
motion should not be granted The Respondent
filed a response to the Notice to Show Cause 2
The National Labor Relations Board has delegat-
ed 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 Regula-
tions provides that 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 is shown The complaint states
that unless an answer is filed within 14 days of
service, "all of the allegations in the complaint
shall be deemed to be admitted to be true and shall
be so found by the Board" The undisputed allega-
tions in the Motion for Summary Judgment dis-
close that a copy of the February 20 complaint was
duly served by certified mail on the Respondent
By letter dated February 26, the Respondent's at-
torney notified the Regional Director for Region
22 that it had filed a Petition in Bankruptcy under
Chapter 11, and argued that the complaint should
thus be barred by the automatic stay provisions of
the Bankruptcy Code The Respondent's attorney
'All dates are in 1990 unless noted
2 On April 26 the Union sought leave to file a responsive brief support-
ing the General Counsel's Motion for Summary Judgment The Union's
request is granted and its brief has been duly considered
also demanded that the Region cancel the unfair
labor practice hearing and dismiss the complaint
On March 2, the Regional attorney for Region
22 wrote the Respondent's attorney advising that
unfair labor practice proceedings under the Nation-
al Labor Relations Act are excepted from the auto-
matic stay provisions of Section 362(b)(4) of the
Bankruptcy Code NLRB v Evans Plumbing Go,
639 F 2d 291 (5th Cu- 1981), In re Nicholas, Inc,
55 BR 212, 214 (Bankr D NJ 1985), NLRB v
Edward Cooper Painting, 804 F 2d 934 (6th Cir
1986) The Regional attorney's March 2 letter also
advised the Respondent's attorney that the Region
intended to proceed with the hearing in this case
and that the Respondent must file an answer to the
complaint The letter gave the Respondent an ex-
tension of time until March 9 to file an answer and
stated that "fflailure to file an answer by close of
business on March 9, 1990 will result in the filing
of a motion for summary judgment against your
client
The Respondent did not file an answer or timely
request an extension of time to do so In its re-
sponse to the Notice to Show Cause, 3 however,
the Respondent argues that its February 26 letter
constitutes a response to the complaint allegations
that should, at a minimum, result in a hearing
before an administrative law judge Alternatively,
the Respondent seeks an extension of time to file an
answer to the complaint Finally, the Respondent
alleges that there are factual issues in dispute war-
ranting a hearing on the ments
We find the Respondent's arguments unpersua-
sive Its institution of bankruptcy proceedings does
not deprive the Board of jurisdiction to process
this unfair labor practice case Katco, Inc , 295
NLRB No 92 (June 30, 1989) (unreported) Nor
does its February 26 letter constitute an answer
The letter does not specifically admit, deny, or ex-
plain each of the facts alleged in the complaint, as
required by Section 102 20 of the Board's Rules
and Regulations 4 See generally Superior Home ct
Health Care, 287 NLRB 45 (1987)
The Respondent's response to the Board's Show
Cause Order similarly is inadequate The response
does not sufficiently explain the Respondent's fail-
ure to file a proper and timely answer to the corn-
3 The Notice to Show Cause specified that April 4 was the deadline
for filing a response On Apnl 3, the Board granted the Respondent an
extension until April 23 to file its response Although the Respondent did
not file its response with the Board until Apnl 24, it timely served It on
the parties on April 20 Accordingly, the response was accepted by the
Executive Secretary's Office of the Board Neither the General Counsel
nor the Charging Party subsequently moved to strike the response
4 We find no merit in the Respondent's claim that the Feb 26 letter
put the Board on notice of its "Intention to litigate the propriety of
the charge and complaint" Even if the letter served this purpose, it
would not satisfy the requirements of Sec 102 20
299 NLRB No 40
DAYWORK FIRE PROTECTION 329
plaint, or provide a cogent reason for further ex-
tending the answer penod And, the Respondent's
attack on the complaint's factual allegations, while
appropriate in a timely answer, simply came too
late when included for the first time in the response
to the Notice to Show Cause See generally Middle
Eastern Bakery, 243 NLRB 503, 504 fn 1 (1979),
Petitto Bros. Inc , 291 NLRB No 139, slip op at 2-
3 (Nov 30, 1988) (unreported) In view of the
above, we find that the Respondent has not shown
good cause for its failure to file an acceptable
answer In accordance with the Rules set forth
above, the allegations in the complaint are deemed
to be admitted to be true
Accordingly, we grant the Motion for Summary
Judgment
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a corporation with an office
and place of business in Manalapan, New Jersey, is
a contractor in the automatic fire sprinkler indus-
try During the 12 months preceding issuance of
the complaint, the Respondent purchased and re-
ceived at its Manalapan facility products, goods,
and materials valued in excess of $50,000 directly
from points outside the State of New Jersey We
find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the
Act
II ALLEGED UNFAIR LABOR PRACTICES
A The Representative Status of the Union
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act
All journeymen sprinkler fitters and appren-
tices employed by Respondent at its Manala-
pan, New Jersey facility, excluding office cler-
ical employees, professional employees, guards
and supervisors as defined in the Act
At all material times, the Union has been the des-
ignated and recognized exclusive bargaining repre-
sentative of the unit under Section 9(a) of the Act
This recognition has been embodied in successive
collective-bargaining agreements between the Re-
spondent and the Union, the most recent of which
is effective by its terms from April 1, 1988, to
March 31, 1991 At all material times, the Union,
by virtue of Section 9(a) of the Act, has been the
exclusive representative of the Respondent's em-
ployees for the purpose of collective bargaining
B Refusal to Comply with the Contract
Since about September 1989 and continuing to
date, the Respondent has modified the existing
terms and conditions of employment in the unit by
unilaterally discontinuing contractually required
contributions to the National Automatic Sprinkler
Industry Welfare and Pension Funds These wel-
fare and pension fund provisions relate to wages,
hours, and other terms and conditions of employ-
ment in the unit and are mandatory subjects for
purposes of collective bargaining We find that
these modifications constitute unilateral midterm
contractual changes in violation of Section 8(a)(5)
and (1) of the Act
C Repudiation of the Contract
Since about December 18, 1989, the Respondent
has repudiated the collective-bargaining agreement
with the Union covenng unit employees We find
that this repudiation violates Section 8(a)(5) and (1)
of the Act
D Withdrawal of Recognition
Since about December 18, 1989, the Respondent
withdrew its recognition from the Union as the ex-
clusive collective-bargaining representative of the
unit We find that this withdrawal violates Section
8(a)(5) and (1) of the Act
CONCLUSIONS OF LAW
1 By the acts described above in paragraphs
II,B,C, and D, the Respondent has failed and re-
fused, and is failing and refusing, to bargain collec-
tively and in good faith with the representative of
its employees, and the Respondent thereby has
been engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act
2 The unfair labor practices of the Respondent,
described above, affect commerce within the mean-
ing of 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 designed to effectuate the policies of the
Act
We shall order the Respondent to make whole
unit employees for any losses they suffered by the
Respondent's failure to adhere to the terms of the
contract, Ogle Protection Service, 183 NLRB 682
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1970), with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987) We shall also order the Re-
spondent to make the required contributions to the
National Automatic Spnnkler Industry Welfare and
Pension Funds and to transmit to the funds the
contributions it failed to make since September
1989 5 We shall further order the Respondent to
make whole unit employees for any loss of benefits
caused by its failure to make these required fund
contributions and to reimburse employees for any
expenses ensuing from the Respondent's unlawful
failure to make the contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn 2
(1980), enfd mem 661 F 2d 940 (9th Cir 1981)
ORDER
The National Labor Relations Board orders that
the Respondent, Daywork Fire Protection, Inc ,
Manalapan, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1 Cease and desist from
(a) Instituting unilateral changes in contractual
terms and conditions of employment of its unit em-
ployees without the Union's consent during the
term of the parties' collective-bargaining agreement
by failing to make contractually required contribu-
tions to the National Automatic Sprinkler Industry
Welfare and Pension Funds
(b) Failing and refusing to give effect to and
fully comply with its collective-bargaining agree-
ment with Road Sprinkler Fitters, Local Union
No 669, U A, AFL-CIO
(c) Refusing to recognize or bargain collectively
with the Union concerning wages, hours, and other
terms and conditions of employment in the follow-
ing appropriate unit
All journeymen sprinkler fitters and appren-
tices employed by Respondent at its Manala-
pan, New Jersey facility, excluding office cler-
ical employees, professional employees, guards
and supervisors as defined in the Act
(d) In any like or related manner mterfenng
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) On request, bargain with Road Sprinkler Fit-
ters, Local Union No 669, U A, AFL-CIO, as the
exclusive representative of employees in the fol-
lowing unit
'Any additional amounts owed with respect to these fund contribu-
tions shall be calculated in the manner set forth in Merryweather Optical
Co. 240 NLRB 1213 (1979)
All journeymen sprinkler fitters and appren-
tices employed by Respondent at its Manala-
pan, New Jersey facility, excluding office cler-
ical employees, professional employees, guards
and supervisors as defined in the Act
(b) Adhere to the terms and conditions of its col-
lective-bargaining agreement with the Union, in-
cluding, but not limited to, its provisions governing
welfare and pension contnbutions
(c) Make whole unit employees for any loss of
benefits suffered as a result of the Respondent's
failure to abide by the terms of its collective-bar-
gaining agreement with the Union, including
making required payments to the National Auto-
matic Sprinkler Industry Welfare and Pension
Funds and by reimbursing employees for any ex-
penses ensuing from the Respondent's unlawful
failure to make such payments, in the manner set
forth in the remedy section of this decision
(d) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(e) Post at its Manalapan facility copies of the at-
tached notice marked "Appendix " 6 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 22, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employes are customarily posted Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
° 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 Nation-
al 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"
DAYWORK FIRE PROTECTION 331
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 ordered us to post and abide by this notice
WE WILL NOT institute unilateral changes in con-
tractual terms and conditions of employment of our
unit employees without the Union's consent during
the term of the parties' collective-bargaining agree-
ment by failing to make contractually required con-
tributions to the National Automatic Sprinkler In-
dustry Welfare and Pension Funds
WE WILL NOT refuse to recognize or bargain
with Road Sprinkler Fitters, Local Union No 669,
U A, AFL-CIO, as the exclusive bargaining repre-
sentative of our employees in the following unit
All journeymen sprinkler fitters and appren-
tices employed by Respondent at its Manala-
pan, New Jersey facility, excluding office cler-
ical employees, professional employees, guards
and supervisors as defined in the Act
WE WILL NOT fail to make contributions on
behalf of our unit employees to the National Auto-
matic Sprinkler Industry Welfare and Pension
Funds
WE WILL NOT fail and refuse to adhere to the
terms of our collective-bargaining agreement with
the Union
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the nghts guaranteed you by Section 7 of
the Act
WE WILL, on request, bargain with the Union as
the exclusive representative of employees in the
above-described unit
WE WILL adhere to the terms of our collective-
bargammg agreement with the Union, including,
but not limited to, its welfare and pension contribu-
tion provisions
WE WILL pay into the National Automatic
Sprinkler Industry Welfare and Pension Funds
those contributions we failed to make as a result of
our unlawful discontinuance of fund payments
WE WILL make unit employees whole for any
losses or expenses they may have suffered as a
result of our failure to abide by the terms of our
collective-bargaining agreement with the Union, in-
cluding any losses or expenses resulting from our
unilateral discontinuance of contractually required
welfare and pension contributions
DAYWORK FIRE PROTECTION, INC
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