Dismantlement Consultants

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 650 (N.L.R.B. 1993)

650
312 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1993 unless otherwise indicated.
2 The response is entitled ‘‘Respondent’s Memorandum in Re-
sponse to and in Opposition to Motion for Summary Judgment.’’
3 The complaint alleges that the Respondent and Kentucky Labor-
ers’ District Counsel are parties to a collective-bargaining agreement
covering certain of the Respondent’s employees at its DuPont jobsite
in Louisville, Kentucky.
4 Sec. 102.23 provides in pertinent part that a repondent may
amend it answer at any time prior to the hearing.
5 Tri-Way Security, 310 NLRB 1222 (1993); Steeltec Inc., 302
NLRB 980 (1991).
Dismantlement Consultants, Ltd., Inc. and Warren
Pate. Case 9–CA–30441
September 30, 1993
ORDER DENYING MOTION FOR SUMMARY
JUDGMENT AND REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge and an amended charge filed by
Warren Pate, an Individual, on March 1 and 12, 1993,1
respectively, the Regional Director for Region 9 of the
National Labor Relations Board issued a complaint on
April 22 against Dismantlement Consultants, Ltd., Inc.,
the Respondent, alleging that it has violated Section
8(a)(3) and (1) of the National Labor Relations Act.
Copies of the charges and the complaint were properly
served on the Respondent. On July 13, the Respondent,
proceeding pro se, filed a letter dated June 18 purport-
ing to be an answer to the complaint.
On July 13, the General Counsel filed a Motion for
Summary Judgment and Memorandum in Support of
Motion for Summary Judgment, with exhibits attached.
On July 15, 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 July 28, the
Respondent filed a notice of appearance of counsel, a
response to the Notice to Show Cause,2 and an amend-
ed answer to the complaint.
The complaint alleges that, inter alia, from Decem-
ber 3 through 18, 1992, employee Pate raised concerns
with the Respondent and among other employees about
employees being exposed to asbestos, and that on or
about December 17, 1992, Pate filed a complaint with
the Occupational Safety & Health Administration
(OSHA) concerning asbestos in the work area at the
Respondent’s DuPont jobsite. The complaint further al-
leges that because of these activities or because he as-
sisted the Union,3 the Respondent has refused to recall
Pate to the jobsite since about January 4 in violation
of Section 8(a)(3) and (1) of the Act. According to
uncontroverted allegations in the Motion for Summary
Judgment and Memorandum in Support, the General
Counsel, by letter dated June 9, notified the Respond-
ent that unless an answer was filed by the close of
business on June 17, a motion for summary judgment
would be filed.
By letter dated June 18, the Respondent, through its
vice president of administration, Kathy Shaffer, wrote
to counsel for the General Counsel. In that letter the
Respondent admitted certain complaint allegations. It
further stated, inter alia, that after insulation material
was exposed on the DuPont jobsite in December 1992,
a representative of the Respondent met with a DuPont
safety coordinator, who was also engaged in a meeting
with Pate and that shortly after the meeting, a union
representative came on the site. The Respondent fur-
ther stated that its December 1992 layoffs were based
on lack of work, and that beginning in January 1993,
employees were rehired ‘‘strictly based on past job
performance as it related to the type of work to be
completed.’’ The Respondent concluded that, ‘‘[a]t no
time was any discriminatory practices [sic] used in re-
gard to hiring, rehiring or terminating any employees.’’
The General Counsel acknowledges the Respond-
ent’s June 18 letter, but contends that it is not a suffi-
cient and complete answer because it does not specifi-
cally admit, deny, or explain each of the facts alleged
in the complaint, as required by Section 102.20 of the
Board’s Rules and Regulations. In these circumstances,
the General Counsel requests that certain allegations of
the complaint be deemed to be admitted to be true.
In its response to the Notice to Show Cause, the Re-
spondent contends that the assertions in its June 18 let-
ter regarding the safety meeting after which a union
representative came on site comply with Rule 102.20
by explaining ‘‘the extent of Respondent’s knowledge
of Warren Pate’s participation in activities concerning
the insulation materials.’’ Additionally, citing Section
102.23 of the Board’s Rules and Regulations, the Re-
spondent submits that it should be permitted to file its
amended answer of July 28, which it contends raises
genuine issues of material fact.4 Finally, contending
that its initial answer represented a good-faith effort to
deny the allegations of the complaint, the Respondent
notes that it cooperated fully with the Board’s inves-
tigation of the alleged unfair labor practices and has
retained counsel to ensure future compliance with the
Board’s procedural rules. For all these reasons, the Re-
spondent maintains that the General Counsel’s motion
for summary judgment should be denied.
Having duly considered the matter, we find that
summary judgment is not appropriate here. The Re-
spondent’s June 18 letter specifically denies the com-
plaint’s allegation that the Respondent unlawfully re-
fused to recall Pate because he engaged in protected
activity. We note that, in addition to the specific denial
of discriminatory employment practices, the answer
contains an explanation of the Respondent’s selection
of employees for recall.5 Further although the answer
does not address each fact alleged in the complaint, its
651DISMANTLEMENT CONSULTANTS
6 Although it does not appear that the Respondent’s letter was
served on the Charging Party as required by Sec. 102.21, we note
the pro se basis on which the Respondent was proceeding. See Acme
Building Maintenance Co., 307 NLRB 358 fn. 6 (1992).
7 Under the circumstances, we accept the Respondent’s amended
answer. See Florida Steel Corp., 222 NLRB 586 (1976). Cf. Wheel-
er Mfg. Co., 296 NLRB 6 (1989) (where the respondent’s failure to
file a timely and adequate answer was not supported by a showing
of good cause, Board declined to accept the answer filed with the
response to the Notice to Show Cause).
specific denial of the substance of the complaint raises
substantial and material issues of fact warranting a
hearing before an administrative law judge. Under the
circumstances, and because the letter was filed without
the benefit of counsel, we will not preclude a deter-
mination on the merits simply because of the Respond-
ent’s failure to comply with all of the Board’s proce-
dural rules.6
Accordingly, the General Counsel’s Motion for
Summary Judgment is denied.7
ORDER
It is ordered that the General Counsel’s Motion for
Summary Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 9 for fur-
ther appropriate action.