Service Chemical Supply Corp.

National Labor Relations Board - Board Decisions

Apr 13, 1998

325 N.L.R.B. 647 (N.L.R.B. 1998)

647
325 NLRB No. 111
SERVICE CHEMICAL SUPPLY CORP.
1 The complaint was served by certified mail on the Respondent
at the last known business address and to its president, Eve Avilez,
and by regular mail to its co-owner, Frank Avilez, and to the office
of its legal counsel. Only the complaint sent to the business address
was returned to the Regional Office. A letter from the Respondent’s
counsel, dated July 28, 1997, confirms the Respondent’s July 18,
1997 receipt of the complaint and asserts an intention to file an an-
swer.
2 Par. 4 of the Respondent’s ‘‘answer,’’ reads, in part, that ‘‘[t]he
assets of the business were not moved to 20545 Bellshaw, Carson,
California as the complaint charges.’’ There is no corresponding al-
legation in the complaint; however, language in the charge and the
amended charge sets forth this contention. In any event, we find this
statement nonresponsive to the complaint.
3 Sec. 102.20 of the Board’s Rules and Regulations reads, in full,
as follows:
The respondent shall, within 14 days from the service of the
complaint, file an answer thereto. The respondent shall specifi-
cally admit, deny, or explain each of the facts alleged in the
complaint, unless the respondent is without knowledge, in which
case the respondent shall so state, such statement operating as
a denial. All allegations in the complaint, if no answer is filed,
or any allegation in the complaint not specifically denied or ex-
plained in an answer filed, unless the respondent shall state in
the answer that he is without knowledge, shall be deemed to be
admitted to be true and shall be so found by the Board, unless
good cause to the contrary is shown.
Service Chemical Supply Corporation and Mis-
cellaneous Warehousemen, Drivers and Help-
ers, Local 986, International Brotherhood of
Teamsters, AFL–CIO. Case 21–CA–31902
April 13, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
Upon charges filed by the Miscellaneous Ware-
housemen, Drivers and Helpers, Local 986, Inter-
national Brotherhood of Teamsters, AFL–CIO (the
Union) on March 3, 1997, and amended on July 10,
1997, the General Counsel of the National Labor Rela-
tions Board issued a complaint on July 16, 1997,
against Service Chemical Supply Corporation, the Re-
spondent, alleging that it violated Section 8(a)(5) and
(1) of the National Labor Relations Act. Copies of the
charges and the complaint were properly served on the
Respondent.1 On July 30, 1997, the Respondent’s
counsel filed an answer to the complaint, stating gen-
erally that the Respondent ‘‘denies any unfair labor
practices,’’ ‘‘explaining the closing’’ and ‘‘dissolu-
tion’’ of the corporation as the result of financial prob-
lems brought about by the assessment of certain tax li-
abilities, decreasing sales, and uncollectable overdue
accounts receivable, and stating that the former propri-
etors of the corporation intended to file personal bank-
ruptcy as well. Copies of the certificate of corporate
dissolution and a tax clearance certificate were at-
tached. The answer failed, however, to respond directly
to the specific allegations in the complaint.2 By letter
of September 12, 1997, the General Counsel notified
the Respondent of the inadequacy of its answer, ex-
plained that the Respondent must ‘‘admit, deny, or ex-
plain each fact alleged in the complaint,’’ enclosed a
copy of Section 102.20 of the Board’s Rules and Reg-
ulations,3 and advised that the failure to file an amend-
ed answer by September 30, 1997, could result in the
General Counsel’s seeking summary judgment. Receiv-
ing no response, on December 1, 1997, the General
Counsel telephoned the Respondent’s counsel and in-
formed her that the General Counsel would file a Mo-
tion for Summary Judgment if a more responsive an-
swer were not filed by close of business December 2,
1997. On December 8, 1997, the General Counsel con-
tacted the Respondent’s counsel by telephone and a
subsequent confirming letter, and reiterated its inten-
tion to seek summary judgment in the absence of a
more responsive answer. The Respondent filed no fur-
ther response.
On December 22, 1997, the General Counsel filed
with the Board a Motion for Summary Judgment, with
exhibits attached. The General Counsel requests that
all the allegations of the complaint be deemed admit-
ted to be true, that the Respondent be found to have
violated Section 8(a)(5) and (1) of the Act without tak-
ing evidence in support of the complaint, and that the
Board issue a decision and appropriate remedial Order.
On December 29, 1997, the Board issued an Order
transferring the proceeding to the Board and a Notice
to Show Cause why the General Counsel’s motion
should not be granted. The Respondent filed no re-
sponse. The allegations in the motion are therefore un-
disputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) by closing its business without
prior timely notice to the exclusive collective-bargain-
ing representative of its employees and without having
afforded the Union an opportunity to bargain in good
faith about the effects of the closing on employees.
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 the date of service of the
complaint, unless 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 shall be considered admitted. Further,
the undisputed allegations in the Motion for Summary
Judgment disclose that the Region, by letter dated Sep-
tember 12, 1997, advised the Respondent’s counsel of
the deficiencies in its answer, what was required for an
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648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adequate answer, and specified a reasonable time in
which the Respondent could provide such an answer.
Thereafter by telephone on December 1, 1997, and
again by telephone and letter on December 8, 1997,
the Region notified the Respondent that unless an
amended answer comporting with the requirements
under the Board’s Rules and Regulations was received
immediately, a Motion for Summary Judgment would
be filed.
We find that the Respondent’s July 30, 1997 ‘‘an-
swer,’’ filed by its attorney, offering a general denial
that it had committed any unfair labor practices and
identifying certain financial difficulties which led to its
closing is insufficient to constitute an adequate answer
to the complaint under Section 102.20 of the Board’s
Rules and Regulations because it does not specifically
admit, deny, or explain each of the allegations in the
complaint. See O.P. Held, Inc., 286 NLRB 676 (1987).
Thus, in the absence of good cause being shown for
its failure to file a timely adequate answer, 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 California corporation, at its fa-
cility in Pico Rivera, California, has been engaged in
the business of purchasing and selling dry-cleaning
supplies where it annually purchased and received
goods valued in excess of $50,000 directly from other
enterprises located within the State of California, each
of which had received these goods directly from points
outside the State of California. We find that the Re-
spondent 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
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All full-time and regular part-time truck drivers
and warehousemen employed by the Employer at
7869 South Paramount Boulevard, Pico Rivera,
California; excluding all other employees, office
clerical employees, professional employees, and
supervisors as defined in the Act.
Since at least September 26, 1995, the Respondent
has recognized the Union as the exclusive collective-
bargaining representative of the unit. This recognition
has been embodied in successive collective-bargaining
agreements, the most recent one of which is effective
from October 1, 1994, to October 1, 1997.
On January 30, 1997, the Respondent closed its
business without having given prior timely notice to
the Union of its decision to close and without having
afforded the Union an opportunity to bargain over the
effects of its decision on unit employees.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has failed and refused to bargain collectively
and in good faith with the Union as the exclusive col-
lective-bargaining representative of its employees, and
therefore has engaged in unfair labor practices affect-
ing 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. Specifi-
cally, having found that the Respondent closed its op-
erations without providing the Union with timely prior
notice or opportunity to bargain over the effects of the
closing on the employees, we will require the Re-
spondent to bargain upon request with the Union over
the effects of the closing and to make whole employ-
ees for the losses incurred as a result of this unfair
labor practice in accordance with Transmarine Naviga-
tion Corp., 170 NLRB 389 (1968).
Thus, the Respondent shall pay its terminated em-
ployees backpay at the rate of their normal wages
when last in the Respondent’s employ from 5 days
after the date of this Decision and Order until occur-
rence of the earliest of the following conditions: (1)
the date the Respondent bargains to agreement with
the Union on those subjects pertaining to the effects of
the closure on its employees; (2) a bona fide impasse
in bargaining; (3) the Union’s failure to request bar-
gaining within 5 days of the date of this Decision and
Order, or to commence negotiations within 5 days of
the Respondent’s notice of its desire to bargain with
the Union; and (4) the Union’s subsequent failure to
bargain in good faith; but in no event shall the sum
paid to those employees exceed the amount they would
have earned as wages from the date on which the Re-
spondent terminated its operations, to the time they se-
cured equivalent employment elsewhere, or the date on
which the Respondent shall have offered to bargain in
good faith, whichever occurs sooner; provided, how-
ever, that in no event shall this sum be less than the
employees would have earned for a 2-week period at
the rate of their normal wages when last in the Re-
spondent’s employ. Backpay shall be based on earn-
ings which the terminated employees would normally
have received during the applicable period, less any
net interim earnings, and shall be computed in accord-
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649SERVICE CHEMICAL SUPPLY CORP.
4 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.’’
ance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
In addition, in view of the fact that the Respondent’s
facility is currently closed, we shall order the Respond-
ent to mail a copy of the attached notice to the Union
and to the last known addresses of its former employ-
ees in order to inform them of the outcome of this pro-
ceeding.
ORDER
The National Labor Relations Board orders that the
Respondent, Service Chemical Supply Corporation,
Pico Rivera, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Miscellane-
ous Warehousemen, Drivers and Helpers, Local 986,
International Brotherhood of Teamsters, AFL–CIO as
the exclusive collective-bargaining representative of
the employees in the unit with respect to the effects on
unit employees of its decision to close the Pico Rivera,
California facility.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively in good faith
with the Union with respect to the effects on unit em-
ployees of the closing of its Pico Rivera, California fa-
cility, and reduce to writing any agreement reached as
a result of such bargaining.
(b) Pay the employees in the following appropriate
unit their normal wages for the period set forth in the
remedy section of this decision.
All full-time and regular part-time truck drivers
and warehousemen employed by us at 7869 South
Paramount Boulevard, Pico Rivera, California; ex-
cluding all other employees, professional employ-
ees, and supervisors as defined in the Act.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, mail
an exact copy of the attached notice marked ‘‘Appen-
dix,’’4 to Miscellaneous Warehousemen, Drivers and
Helpers, Local 986, International Brotherhood of
Teamsters, AFL–CIO, and to all unit employees. Cop-
ies of the notice, on forms provided by the Regional
Director for Region 21, after being signed by the Re-
spondent’s authorized representative, shall be mailed
immediately upon receipt.
(e) 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.
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 fail and refuse to bargain with Mis-
cellaneous Warehousemen, Drivers and Helpers, Local
986, International Brotherhood of Teamsters, AFL–
CIO as the exclusive collective-bargaining representa-
tive of the employees in the following unit by closing
our Pico Rivera, California facility and terminating all
unit employees without affording the Union prior no-
tice or an opportunity to bargain with respect to the ef-
fects on the unit employees of the decision.
All full-time and regular part-time truck drivers
and warehousemen employed by us at 7869 South
Paramount Boulevard, Pico Rivera, California; ex-
cluding all other employees, professional employ-
ees, and supervisors as defined in the Act.
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, on request, bargain collectively and in
good faith with the Union with respect to the effects
on unit employees of our decision to close our Pico
Rivera, California facility, and reduce to writing any
agreement reached as a result of such bargaining.
WE WILL pay the unit employees who were em-
ployed at the Pico Rivera, California facility their nor-
mal wages for the period set forth in a decision of the
National Labor Relations Board.
SERVICE CHEMICAL SUPPLY CORPORA-
TION
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