Paterson-Stevens, Inc.

National Labor Relations Board - Board Decisions

May 18, 1994

313 N.L.R.B. 1229 (N.L.R.B. 1994)

1229
313 NLRB No. 227
PATTERSON-STEVENS, INC.
1 See Maislin Transport, 274 NLRB 529 (1985).
2 We express no view about the evidentiary use in Case 3–CA–
17899 of our Decision and Order in the present case.
Patterson-Stevens, Inc. and International Union of
Operating Engineers Local No. 17, AFL–CIO.
Case 3–CA–17908
May 16, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
Upon a charge filed by the Union on June 8, 1993,
and an amended charge on July 26, 1993, the General
Counsel of the National Labor Relations Board issued
a consolidated complaint on July 30, 1993, and a cor-
rected consolidated complaint on August 3, 1993,
against Patterson-Stevens, Inc. (the Respondent) in
Cases 3–CA–17899 and 3–CA–17908, alleging that it
has violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act. On August 7, 1993, the
Respondent filed a timely answer to the corrected con-
solidated complaint. On September 13, 1993, an order
severing cases was issued. On September 13, 1993, an
amended complaint in 3–CA–17908 was issued against
the Respondent alleging that it has violated Section
8(a)(1), (3), and (5) of the National Labor Relations
Act. On September 17, 1993, the Respondent filed a
timely answer to the amended complaint. On January
26, 1994, the Respondent filed a withdrawal of answer
and consent to entry of judgment.
On February 2, 1994, the General Counsel filed a
Motion for Summary Judgment with the Board. On
February 4, 1994, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On Feb-
ruary 14, 1994, the Respondent’s counsel filed an affi-
davit in response to the Notice to Show Cause. On
February 28, 1994, counsel for the Acting General
Counsel filed a motion in opposition to the Respond-
ent’s response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three member
panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the amended
complaint affirmatively notes that unless an answer is
filed within 14 days of service, all the allegations in
the complaint will be considered admitted. Further, the
undisputed allegations in the Motion for Summary
Judgment disclose that the Respondent has withdrawn
its answer to the amended complaint and has consented
to an entry of judgment against it in those proceedings
in accordance with the facts alleged in the amended
complaint. Such a withdrawal has the same effect as
a failure to file an answer, i.e., the allegations in the
amended complaint must be considered to be admitted
to be true.1
In its response to the Notice to Show Cause, the Re-
spondent’s counsel asserts that the General Counsel
has argued before an administrative law judge in Case
3–CA–17899 that the Respondent’s withdrawal of its
answer in the instant case could be used as an evi-
dentiary admission that the Respondent deliberately
violated the Act in the instant case. The Respondent
contends, however, that because it did not litigate the
violations in the instant case, the General Counsel can-
not rely in Case 3–CA–17899 on the default in the in-
stant case. The Respondent requests that if the Board
concludes otherwise that the Respondent be granted an
opportunity to reinstate its answer and to litigate the
matter on the merits in the instant case.
As noted above, a withdrawn answer has the same
effect as a failure to file an answer. The Respondent
does not contend that, in withdrawing its answer, it re-
lied on any express representations or assurances by
the Acting General Counsel that the default would not
be used as evidence in a collateral proceeding. We find
that the Respondent has not established good cause
within the meaning of Section 102.20 of the Board’s
Rules and Regulations for failure to file a timely an-
swer.2 Accordingly, 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, with an office and
place of business in Tonawanda, New York, has been
engaged as a contractor in the construction industry.
During the 12-month period ending June 30, 1993, the
Respondent, in conducting its business operations, pur-
chased and received at its Tonawanda, New York fa-
cility goods valued in excess of $50,000 from other
enterprises located in New York, each of which other
enterprises had received these goods directly from
points outside the State of New York. We find that the
Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act 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 material times Labor Relations Division,
Western New York, Associated General Contractors of
America, New York State Chapter, Inc. (the AGC) has
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been an organization composed of various employers
engaged in the construction industry, one purpose of
which is to represent its employer-members and other
employers in negotiating and administering collective-
bargaining agreements with various labor organiza-
tions, including the Union. About April 1, 1990, the
AGC and the Union entered into a collective-bargain-
ing agreement (the AGC agreement), nominally effec-
tive from April 1, 1990, to March 31, 1993, which
agreement continues in effect by its terms until March
31, 1994. About October 7, 1992, the Respondent en-
tered into a written agreement which at all material
times bound the Respondent to the terms and condi-
tions of employment of the AGC agreement.
The following employees of the Respondent (the
unit) constitute a unit appropriate for the purposes of
collective-bargaining within the meaning of Section
9(b) of the Act:
All employees described in Article III, Union
Recognition and Security, of the collective-bar-
gaining agreement between AGC and the Union,
effective April 1, 1990 to March 31, 1994.
At all times, the Union has been the designated exclu-
sive collective-bargaining representative of the unit,
and at all material times the Union has been recog-
nized as the representative by the Respondent. This
recognition has been embodied in successive prehire
collective-bargaining agreements, the most recent of
which is effective from April 1, 1990, to March 31,
1994. By virtue of Section 8(f) of the Act and the
principles established by the Board in John Deklewa &
Sons, 282 NLRB 1375 (1987), the Union has been,
and is the limited exclusive collective-bargaining rep-
resentative for the employees in the unit for the pur-
poses of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment. By virtue of its authoriza-
tion to be bound by the AGC’s collective-bargaining
agreement described above, the Respondent is bound
to the most recent prehire collective-bargaining agree-
ment described above. Since on or about May 31,
1993, the Respondent has failed and refused to adhere
to the terms and conditions of the most recent prehire
collective-bargaining agreement described above and
has thereby repudiated that agreement.
About May 28, 1993, the Respondent laid off its
employees Michael Muscarella and Merle
Schrechergest. Respondent engaged in this conduct be-
cause these employees are members of the Union, as-
sisted the Union and engaged in concerted activities,
and to discourage employees from engaging in these
activities.
CONCLUSIONS OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively with the exclusive collective-bargaining rep-
resentative of its employees in violation of Section
8(a)(1) and (5) of the Act, and has been discriminating
in regard to the hire or tenure or terms or conditions
of employment of its employees by laying off its em-
ployees, thereby discouraging membership in a labor
organization in violation of Section 8(a)(1) and (3) of
the Act, and has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(1), (3), and (5) 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. Specifi-
cally, having found that the Respondent has repudiated
the collective-bargaining agreement, we shall order it
to abide by the agreement and to make unit employees
whole for any losses suffered as a result of the failure
to adhere to the terms of the collective-bargaining
agreement since May 31, 1993. Backpay, if any, shall
be computed in accordance with Ogle Protection Serv-
ice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent has violated Sec-
tion 8(a)(3) and (1) by laying off Michael Muscarella
and Merle Schrechergest, we shall order the Respond-
ent to offer these discriminatees immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and to make them whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against them. Backpay
shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, supra. The
Respondent shall also be required to expunge from its
files any and all references to the unlawful layoffs, and
to notify the discriminatees in writing that this has
been done.
ORDER
The National Labor Relations Board orders that the
Respondent, Patterson-Stevens, Inc., Tonawanda, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off or otherwise discriminating against
any employee because of their membership in or ac-
1231PATTERSON-STEVENS, INC.
3 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.’’
tivities on behalf of International Union of Operating
Engineers Local No. 17, AFL–CIO or any other labor
organization.
(b) Failing and refusing to adhere to the collective-
bargaining agreement in effect with respect to the unit
employees and thereby repudiating that agreement. The
unit includes the following employees:
All employees described in Article III, Union
Recognition and Security, of the collective-bar-
gaining agreement between the AGC and the
Union, effective April 1, 1990 to March 31, 1994.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Michael Muscarella and Merle
Schrechergest immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights and privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of this decision.
(b) Remove from its files any reference to the un-
lawful layoffs and notify the employees in writing that
this has been done and that the layoffs will not be used
against them in any way.
(c) Abide by all terms and conditions of the collec-
tive-bargaining agreement with the Union.
(d) Make whole unit employees for any losses in
wages or benefits they may have suffered because of
the Respondent’s refusal, since May 31, 1993, to abide
by the terms of the collective-bargaining agreement, as
set forth in the remedy section of this decision.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its facility in Tonawanda, New York,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 post and abide by this notice.
WE WILL NOT layoff or otherwise discriminate
against any employee because of their membership in
or activities on behalf of International Union of Oper-
ating Engineers Local No. 17, AFL–CIO or any other
labor organization.
WE WILL NOT fail or refuse to adhere to the collec-
tive-bargaining agreement in effect with respect to the
unit employees and thereby repudiate that agreement.
The unit includes the following employees:
All employees described in Article III, Union
Recognition and Security, of the collective-bar-
gaining agreement between the Labor Relations
Division, Western New York, Associated General
Contractors of America, New York State Chapter,
Inc. and the International Union of Operating En-
gineers Local No. 17, AFL–CIO, effective April
1, 1990 to March 31, 1994.
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 offer Michael Muscarella and Merle
Schrechergest immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights and privileges pre-
viously enjoyed, and WE WILL make them whole for
any loss of earnings and other benefits suffered as a
result of their layoffs, with interest.
WE WILL remove from our files any reference to the
unlawful layoffs and notify the employees in writing
that this has been done and that the layoffs will not
be used against them in any way.
WE WILL abide by all terms and conditions of the
collective-bargaining agreement with the Union, and
WE WILL make whole unit employees for any losses in
wages or benefits they may have suffered because of
our refusal, since May 31, 1993, to abide by the terms
of the collective-bargaining agreement, with interest.
PATTERSON-STEVENS, INC.