S & C Excavating Co.

National Labor Relations Board - Board Decisions

Nov 30, 1994

315 N.L.R.B. 692 (N.L.R.B. 1994)

692
315 NLRB No. 97
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
S & C Excavating Co., Inc. and Carpenters District
Council of Western Pennsylvania a/w United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO. Case 6–CA–26571
November 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
Upon a charge filed by Carpenters District Council
of Western Pennsylvania a/w United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (the
Union) on July 25, 1994, the General Counsel of the
National Labor Relations Board issued a complaint on
September 8, 1994, against S & C Excavating Co., Inc.
(the Respondent), alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations Act.
Although properly served copies of the charge and
complaint, the Respondent has failed to file an answer.
On October 25, 1994, the General Counsel filed a
Motion for Summary Judgment. On October 27, 1994,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed no
response. The allegations in the motion 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
Section 102.20 of the Board’s Rules and Regulations
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 considered to be admitted to
be true and shall be so found by the Board.’’ Section
102.20 also states that an answer should specifically
admit, deny, or explain each of the facts alleged in the
complaint unless the respondent is without knowledge,
in which case it shall so state.
The undisputed allegations in the Motion for Sum-
mary Judgment disclose that the Regional Attorney, by
letter dated September 26, 1994, notified the Respond-
ent that unless an answer was received by the close of
business on the third day following the Respondent’s
receipt of the letter, or unless an extension of time for
filing the answer was granted, a Motion for Summary
Judgment would be filed. This letter was returned to
the Regional Office marked ‘‘unclaimed.’’ In the in-
terim, on September 23, 1994, the Regional Office re-
ceived from the Respondent a handwritten note on the
last page of the complaint. The note stated that the Re-
spondent has retained an attorney to file a Chapter 7
bankruptcy petition. By letter dated September 28,
1994, the Respondent was advised that the handwritten
note did not satisfy the obligation to file an answer in
accordance with the Board’s Rules and Regulations.
The Respondent received this letter, but no answer has
been filed and no extension of time to file an answer
has been sought.
The Respondent’s handwritten note does not con-
stitute a proper answer to the complaint because it
does not address the facts alleged in the complaint.
Furthermore, it is well established that the institution
of bankruptcy proceedings does not deprive the Board
of jurisdiction or authority to entertain and process an
unfair labor practice case to its final disposition. Board
proceedings fall within 11 U.S.C. § 362(b)(4) and (5),
the exception to the automatic stay provision for pro-
ceedings by a governmental unit to enforce its police
or regulatory powers. Phoenix Co., 274 NLRB 995
(1985). Therefore, even if the handwritten note con-
stituted an adequate answer to the complaint, the Re-
spondent has raised no issues warranting a hearing.
In the absence of good cause being shown for the
failure to file a proper and timely answer, and in the
absence of any material issues warranting a hearing,
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, an Ohio corporation with an office
and place of business in Canfield, Ohio, and jobsites
in Greentree and McKeesport, Pennsylvania, has been
engaged in business as a contractor in the construction
industry. During the 12-month period ending June 30,
1994, the Respondent, in the course and conduct of its
business operations, provided services valued in excess
of $50,000 in States other than the State of Ohio. 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
A. The Unit and the Union’s Representative
Status
The employees of the Respondent performing the
work described in article V of the collective-bargaining
agreements described below constitute a unit appro-
priate for collective-bargaining purposes within the
meaning of Section 9(b) of the Act.
About May 23, 1994, the Respondent, an employer
engaged in the building and construction industry, oral-
ly extended recognition to the Union as the exclusive
693S & C EXCAVATING CO.
collective-bargaining representative of the unit employ-
ees, and about May 23, 1994, orally entered into a col-
lective-bargaining agreement effective by its terms for
the period June 1, 1990, to May 31, 1994, which
agreement was executed by the Respondent on June 8,
1994. Since about May 23, 1994, pursuant to the col-
lective-bargaining agreement described above, the
Union has been recognized as the exclusive collective-
bargaining representative of the unit by the Respond-
ent, without regard to whether the majority status of
the Union had ever been established under the provi-
sions of Section 9(a) of the Act. Recognition has been
embodied in successive collective-bargaining agree-
ments executed by the Respondent, the most recent of
which is effective for the period from June 1, 1994, to
May 31, 1998. For the period from May 23, 1994, to
May 31, 1998, the Union, based on Section 9(a) of the
Act, has been, and is, the limited exclusive collective-
bargaining representative of the employees in the unit.
B. The Refusal to Bargain
Article VI of the collective-bargaining agreements
described above provides for the payment of fringe
benefits to pension, medical and annuity and savings
funds for the benefit of the unit. Since about May 24,
1994, the Respondent has failed to continue in effect
all the terms and conditions of the agreements de-
scribed above by failing to pay fringe benefits to the
funds as required by article VI of the collective-bar-
gaining agreements.
Article IV of the collective-bargaining agreements
described above provides for the payment of wages to
unit employees. Since about June 28, 1994, the Re-
spondent has failed to continue in effect all the terms
and conditions of the agreements described above by
failing to pay wages as required by article IV of the
collective-bargaining agreements.
The Respondent engaged in this conduct without the
Union’s consent. The terms and conditions of employ-
ment described above are mandatory subjects for the
purpose of collective bargaining. By this conduct, the
Respondent has been failing and refusing to bargain
collectively and in good faith with the limited exclu-
sive collective-bargaining representative of its unit em-
ployees, and has thereby been engaging in unfair labor
practices within the meaning of Section 8(d) and Sec-
tion 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing to pay fringe benefits to the pension,
medical and annuity and savings funds, and by failing
to pay wages, as required by the collective-bargaining
agreements, 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 de-
signed to effectuate the policies of the Act.
Specifically, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing to make
contractually required contributions to the pension,
medical and annuity and savings funds, we shall order
the Respondent to make whole its unit employees by
making all such delinquent contributions, including any
additional amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979). In addition, the Respondent shall reimburse
unit employees for any expenses ensuing from its fail-
ure to make the required contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) by failing to pay unit employees
contractual wages, we shall order the Respondent to
make the unit employees whole for any loss of earn-
ings attributable to its unlawful conduct. Backpay shall
be computed in accordance with Ogle Protection Serv-
ice, supra, with interest as prescribed in New Horizons
for the Retarded, supra.
In light of the Respondent’s representations in its
handwritten note that the Respondent may have filed
a bankruptcy petition, we shall also provide for mail
notices to employees.
ORDER
The National Labor Relations Board orders that the
Respondent, S & C Excavating Co. Inc., Canfield,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the Union as the lim-
ited exclusive collective-bargaining representative of
the unit employees by failing to make required con-
tributions to the pension, medical and annuity and sav-
ings funds, and by failing to pay contractually required
wages to unit employees.
(b) In any like or related manner interfering with,
restraining, 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) Remit the delinquent contributions to the pen-
sion, medical and annuity and savings funds, including
any additional amounts due the funds, and reimburse
the unit employees for any expenses ensuing from the
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.’’
Respondent’s failure to make the required payments, in
the manner set forth in the remedy section of the deci-
sion.
(b) Make all contractually required wage payments,
in the manner set forth in the remedy section of the
decision.
(c) On request, bargain with Carpenters District
Council of Western Pennsylvania a/w United Brother-
hood of Carpenters and Joiners of America, AFL–CIO
as the limited exclusive collective-bargaining rep-
resentative of the employees performing the work de-
scribed in article V of the collective-bargaining agree-
ments.
(d) 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.
(e) Post at its facility in Canfield, Ohio, and mail to
the Union and to all unit employees, copies of the at-
tached notice marked ‘‘Appendix.’’1 Copies of the no-
tice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, 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 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 refuse to bargain with the Union as
the limited exclusive collective-bargaining representa-
tive of our unit employees by failing to make required
contributions to the pension, medical and annuity and
savings funds, and by failing to pay contractually re-
quired wages to unit employees.
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 remit the delinquent pension, medical and
annuity and savings fund contributions, including any
additional amounts due the funds, and WE WILL reim-
burse the unit employees for any expenses ensuing
from our failure to make the required payments, with
interest.
WE WILL make all contractually required wage pay-
ments, with interest.
WE WILL, on request, bargain with Carpenters Dis-
trict Council of Western Pennsylvania a/w United
Brotherhood of Carpenters and Joiners of America,
AFL–CIO as the limited exclusive collective-bargain-
ing representative of the employees performing the
work described in article V of our collective-bargain-
ing agreements.
S & C EXCAVATING CO., INC.