Nyc Nascap, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1990

298 N.L.R.B. 1079 (N.L.R.B. 1990)

NYC NASCAP 1079
NYC NASCAP, Inc. and District 6, International
Union of Industrial Service Transport & Health
Employees. Case 29-CA-14553
July 11, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
Upon a charge filed by the Union on December
26, 1989, the General Counsel of the National
Labor Relations Board issued a complaint against
NYC NASCAP, Inc., the Respondent, on Febru-
ary 8, 1990,1 alleging that it has violated Section
8(a)(l) and (5) of the National Labor Relations
Act. Although properly served with copies of the
charge and complaint, the Respondent failed to file
a timely answer.
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 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 is shown . The complaint states
that unless an answer is filed within 14 days of
service, "all the allegations in the Complaint shall
be deemed to be admitted to be true and may be so
found by the Board." Further, the undisputed alle-
gations in the Motion for Summary Judgment dis-
close that counsel for the General Counsel, by
letter dated March 7, notified the Respondent that
its answer to the complaint was overdue and that
unless an answer was received by "February 19," a
Motion for Summary Judgment would be filed.2
On ' March 22, in a telephone conversation with
the counsel for the General Counsel, the Respond-
ent acknowledged receipt of the March 7 letter,
and informed the counsel for the General Counsel
that the Respondent would file an answer to the
complaint by March 26.
On March 23, the counsel for the General Coun-
sel sent a letter to the Respondent, confirming their
March 22 telephone conversation and again notify-
ing the Respondent that its answer was overdue
and that unless an answer was received by March
26 a Motion for Summary Judgment would be
filed. The Respondent did not file an answer to the
1 All dates are 1990 unless otherwise stated.
2 The reference to "February 19" in the General Counsel's March 7
letter , is an obvious typographical error. In any event , the Respondent did
not question or refer to this mistake in any written correspondence with
the General Counsel.
complaint or a request for a further extension of
time in which to file an answer.
On April 13, the General Counsel filed a Motion
for Summary Judgment. On April 18, the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause in writing, by
May 2, why the General Counsel's Motion for
Summary Judgment should not be granted.
On May 2, the Respondent did file an answer to
the complaint. However, the Respondent still did
not offer any explanation why it had earlier failed
to file either a timely answer or a request for a fur-
ther extension of time to file an answer.
Because the Respondent has not explained why
it failed to file a timely answer or request a further
extension of time for filing an answer, we find that
the Respondent has not shown good cause for fail-
ing to file a timely answer.3 In the absence of a
timely answer, all the allegations in the complaint
are deemed to be admitted to be true. Accordingly,
we grant the General Counsel's Motion for Sum-
mary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
At all times material the Respondent, a New
York corporation with its' principal office and place
of business located at the TWA International
Flight Building at John F. Kennedy International
Airport, Jamaica, New York, has been engaged in
providing sky-cap and baggage handling services
to Trans World Airlines (TWA).
During the year preceding the issuance of the
complaint, the Respondent, in the course of its
business operations described above, derived gross
revenues in excess of $250,000 and provided serv-
ices valued in excess of $50,000 to TWA, an enter-
prise directly engaged in interstate commerce.
The Respondent is now, and has been at all times
material, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Union is now, and has been at all times ma-
terial, a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
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:
8 Petino Bros, Inc., 291 NLRB No. 139 (Nov. 30, 1988) (not published
in bound volumes). Calloway & Co., 289 NLRB 73 (1988).
298 NLRB No. 161
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All sky-caps and utility employees employed
by the Employer at John F. Kennedy Interna-
tional Airport at TWA's International and Do-
mestic Flight Buildings; excluding all clerical
employees, guards and supervisors and cap-
tains acting as supervisors within the meaning
of the Act.
At all times material, the Union has been recog-
nized by the Respondent as the exclusive collec-
tive-bargaining representative of the Respondent's
employees in the unit. Recognition has been em-
bodied in a series of collective-bargaining agree-
ments between the Union and the Respondent, in-
cluding a collective-bargaining agreement executed
about October 15, 1987, which was effective by its
terms from September 1, 1987, until August 31,
1989, but which had automatically renewed itself
until August 31, 1990.
At all times material, the Union, by virtue of
Section 9(a) of the Act, has been, and is, the exclu-
sive representative of the Respondent's employees
in the unit for the purpose of collective bargaining
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment.
About June 2 and 14, 1989,4 the Union, by letter,
requested the Respondent to negotiate a collective-
bargaining agreement to succeed the one that had
been due to expire by its terms on August 31, but
that had automatically renewed itself until August
31, 1990.
Sometime during the week of October 16, the
Union and the Respondent reached agreement on a
collective-bargaining agreement.
By letter about October 23, and by telephone on
various dates in October, November, and Decem-
ber, the Union has requested the Respondent to
execute a written contract embodying the agree-
ment described above.
Since about December 11, the Respondent, by
Reedy Friday, its president and general manager,
has failed and refused to execute the written con-
tract embodying the agreement between the par-
ties, though requested to do so by the Union.
The complaint alleges, and the Respondent by its
failure to file a timely answer is deemed to have
admitted, that by the acts described above the Re-
spondent has interfered with, restrained, and co-
erced, and is interfering with, restraining, and co-
ercing, its employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and has
failed and refused to bargain collectively, and is
failing and refusing to bargain collectively, with
the representative of its employees, and that the
Respondent thereby has been engaging in unfair
labor practices within the meaning of Section
8(a)(1) and (5) of the Act.
CONCLUSION OF LAW
By failing and refusing to execute the written
contract embodying the collective-bargaining
agreement between the parties, though requested to
do so by the Union, 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 designed to effectuate the policies of the
Act.
Having found that the Respondent has unlawful-
ly failed and refused to execute a collective-bar-
gaining agreement agreed on by the parties, we
shall order the Respondent to execute that agree-
ment and to make the employees whole, with inter-
est, for any losses they may have suffered as a
result of the Respondent's unlawful failure and re-
fusal to execute the agreement, with lost earnings
and interest to be computed in the manner pre-
scribed in Ogle Protection Service, 183 NLRB 682
(1970), and New Horizons for the Retarded, 283
NLRB 1173 (1987), respectively.
ORDER
The National Labor Relations Board orders that
the Respondent, NYC NASCAP, Inc., Jamaica,
New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with District 6, Interna-
tional Union - of Industrial Service Transport &
Health Employees as the exclusive representative
of the employees in the appropriate unit by failing
and refusing to execute the written contract em-
bodying the collective-bargaining agreement be-
tween the Respondent and the Union. The appro-
priate unit is:
All sky-caps and utility employees employed
by the Employer at John F. Kennedy Interna-
tional Airport at TWA's International and Do-
mestic Flight Buildings; excluding all clerical
employees, guards and supervisors and cap-
tains acting as supervisors within the meaning
of the Act.
(b) In any like or related manner interfering
4 All subsequent dates are 1989 unless otherwise stated . with, restraining, or coercing employees in the ex-
NYC NASCAP
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 by the Union, execute the written
contract embodying the collective-bargaining
agreement between the Respondent and the Union.
(b) Make each of the employees in the unit
whole, with interest, for any loss of earnings they
may have suffered by reason of the Respondent's
failure and refusal to sign and give effect to the
written contract embodying the agreement between
the Respondent and the Union, in the manner set
forth in the remedy section above.
(c) 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.
(d) Post at its facility in Jamaica, New York,
`copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20, days from the date of this Order what
steps the Respondent has taken to comply.
S 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."
APPENDIX
1081
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 refuse to bargain collectively with
District 6, International Union of Industrial Service
Transport & Health Employees as the collective-
bargaining representative of the employees in the
unit described below, by failing and refusing to
execute the written contract embodying our collec-
tive-bargaining agreement with the Union. The unit
is:
All sky-caps and utility employees employed
by the Employer at John F. Kennedy Interna-
tional Airport at TWA's International and Do-
mestic Flight Buildings; excluding all clerical
employees, guards and supervisors and cap-
tains acting as supervisors within the meaning
of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request by the Union, execute the
written contract embodying the collective-bargain-
ing agreement between us and the Union.
WE WILL make each of the employees in the unit
whole, with interest, for any loss of earnings they
may have suffered by reason of our failure and re-
fusal to execute the contract embodying the collec-
tive-bargaining agreement between the Union and
us.
NYC NASCAP, INC.