RAS Carting of Long Island

National Labor Relations Board - Board Decisions

May 18, 1998

325 N.L.R.B. 145 (N.L.R.B. 1998)

1
325 NLRB No. 145
1 Although the General Counsel’s motion indicates the complaint
was served by certified mail but was returned to the Regional Office
unclaimed, failure or refusal to accept service cannot defeat the pur-
poses of the Act. See, e.g., Michigan Expediting Service, 282 NLRB
210 fn. 6 (1986).
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
RAS Carting of Long Island, Inc. and Local 835,
Brotherhood of Industrial Workers, a/w the
National Organization of Industrial Trade
Unions. Cases 29–CA–21282 and 29–CA–21635
May 18, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Upon charges filed by the Union on August 14 and
December 18, 1997, the General Counsel of the Na-
tional Labor Relations Board issued a consolidated
complaint (complaint) on January 9, 1998, against
RAS Carting of Long Island, Inc., the Respondent, al-
leging that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act. Although properly
served copies of the charges and complaint,1 the Re-
spondent failed to file an answer.
On April 16, 1998, the Acting General Counsel filed
a Motion for Summary Judgment with the Board. On
April 20, 1998, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
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 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 al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated January 29, 1998,
notified the Respondent that unless an answer were re-
ceived by February 4, 1998, a Motion for Summary
Judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the Acting
General Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New York
corporation, with its principal office and place of busi-
ness in Riverhead, New York, has been engaged in the
business of sanitation removal. During the 1997 cal-
endar year, the Respondent, in the course and conduct
of its business operations, derived gross revenues in
excess of $50,000 directly from municipalities and
other entities that meet a Board test for assertion of ju-
risdiction, exclusive of indirect inflow or outflow. 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 organiza-
tion 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 collective
bargaining within the meaning of Section 9(b) of the
Act:
All employees employed by the Respondent at its
Riverhead, New York facility, excluding office
employees, clerical employees, guards, watchmen,
foremen and supervisors as defined in the Act.
For many years and at all material times, the Union
has been the designated exclusive collective-bargaining
representative of the unit and the Union has been rec-
ognized as such by the Respondent. This recognition
has been embodied in successive collective-bargaining
agreements, including the most recent, which is effec-
tive from April 1, 1996, until March 31, 1999 (the
1996–1999 agreement). At all material times, based on
Section 9(a) of the Act, the Union has been the exclu-
sive collective-bargaining representative of the employ-
ees in the unit.
On July 16, 1997, the Respondent, by letter, with-
drew its recognition of the Union as the exclusive col-
lective-bargaining representative of the employees in
the unit and, at all times thereafter, has failed and re-
fused to recognize the Union as the exclusive collec-
tive-bargaining representative of the unit employees.
Since around May 1997, the Respondent has failed to
continue to apply all the terms and conditions of the
1996–1999 agreement by ceasing to remit, inter alia,
the required contractual payments set forth in section
VII, entitled Check-Off; schedule A, paragraph 4, enti-
tled Insurance; and schedule A, paragraph 9, entitled
Retirement Fund. These subjects relate to wages,
hours, and other terms and conditions of employment
of the unit employees and are mandatory subjects for
the purposes of collective bargaining. The Respondent
engaged in this conduct without the consent of the
Union.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the Respondent’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
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.’’
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively and in good faith with the exclusive collec-
tive-bargaining representative of its employees within
the meaning of Section 8(d) of the Act, and has there-
by engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) 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 withdrawn
recognition from the Union and has failed to continue
to apply all the terms and conditions of the 1996–1999
agreement, we shall order it to recognize and bargain
with the Union and to continue to honor all the terms
of that agreement. Specifically, having found that the
Respondent has violated Section 8(a)(5) and (1) by
failing to remit union dues to the Union since about
May 1997, we shall order the Respondent to remit
union dues as required by the agreement and to reim-
burse the Union for its failure to do so, with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Furthermore, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing to make
contractually required payments as set forth in sched-
ule A, paragraph 4, entitled Insurance, and schedule A,
paragraph 9, entitled Retirement Fund since about May
1997, we shall order the Respondent to make whole its
unit employees by making all such delinquent pay-
ments, including any additional amounts due the funds
in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979). In addition, the Re-
spondent shall reimburse unit employees for any ex-
penses ensuing from its failure to make the required
payments, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th
Cir. 1981), such amounts to be computed in the man-
ner set forth in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).2
ORDER
The National Labor Relations Board orders that the
Respondent, RAS Carting, of Long Island, Inc.,
Riverhead, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from the Union as the
exclusive collective-bargaining representative of the
employees in the unit or failing or refusing to recog-
nize the Union as the exclusive collective-bargaining
representative of the unit employees.
(b) Failing to apply all the terms and conditions of
the 1996–1999 agreement.
(c) In any like or related manner interfering with, re-
straining, 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) Recognize and bargain with the Union for the
following unit employees and continue to honor all the
terms of the 1996–1999 agreement:
All employees employed by the Respondent at its
Riverhead, New York facility, excluding office
employees, clerical employees, guards, watchmen,
foremen and supervisors as defined in the Act.
(b) Remit union dues as required by the agreement
and reimburse the Union for its failure to do so since
about May 1997, with interest.
(c) Make all contractually required payments as set
forth in schedule A, paragraph 4, entitled Insurance,
and schedule A, paragraph 9, entitled Retirement Fund,
that it has failed to make since about May 1997 and
make the unit employees whole in the manner set forth
in the remedy section of this decision.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts
due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its facility in Riverhead, New York, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 no-
3RAS CARTING OF LONG ISLAND
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since May 1, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. May 18, 1998
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Sarah M. Fox, Member
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Wilma B. Liebman, Member
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Peter J. Hurtgen, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 withdraw recognition from Local 835,
Brotherhood of Industrial Workers, a/w the National
Organization of Industrial Trade Unions as the exclu-
sive collective-bargaining representative of the employ-
ees in the unit or fail or refuse to recognize the Union
as the exclusive collective-bargaining representative of
the unit employees.
WE WILL NOT fail to apply all the terms and condi-
tions of the 1996–1999 agreement.
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 recognize and bargain with the Union for
the following unit employees and continue to honor all
the terms of the 1996–1999 agreement:
All employees employed by us at our Riverhead,
New York facility, excluding office employees,
clerical employees, guards, watchmen, foremen
and supervisors as defined in the Act.
WE WILL remit union dues as required by the 1996–
1999 agreement and reimburse the Union for our fail-
ure to do so since about May 1997, with interest.
WE WILL make all contractually required payments
as set forth in schedule A, paragraph 4, entitled Insur-
ance, and schedule A, paragraph 9, entitled Retirement
Fund, of the 1996–1999 agreement with the Union that
we have failed to make since about May 1997 and WE
WILL and make the unit employees whole in the man-
ner set forth in a decision of the National Labor Rela-
tions Board.
RAS CARTING OF LONG ISLAND, INC.