Tri-County Commercial Laundry

National Labor Relations Board - Board Decisions

Dec 7, 1992

309 N.L.R.B. 735 (N.L.R.B. 1992)

735
309 NLRB No. 112
TRI-COUNTY COMMERCIAL LAUNDRY
1 Contrary to his colleagues, Member Devaney in the particular
circumstances of this case would accept the Respondent’s letter as
a timely filed answer to the complaint. Accordingly, and because he
finds the answer substantively sufficient, Member Devaney would
deny the General Counsel’s Motion for Summary Judgment.
Mays Corporation d/b/a Tri-County Commercial
Laundry and District 1199, the Health Care
and Social Service Union, Service Employees
International Union, AFL–CIO and Judy Bush.
Cases 9–CA–29385 and 9–CA–29438
December 7, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge and amended charge filed by District
1199, the Health Care and Social Service Union, Serv-
ice Employees International Union, AFL–CIO (the
Union), and upon a charge and amended charge filed
by Judy Bush, an individual, the General Counsel of
the National Labor Relations Board issued an order
consolidating cases, consolidated complaint and notice
of hearing on April 22, 1992, against Mays Corpora-
tion d/b/a Tri-County Commercial Laundry, the Re-
spondent, alleging that it has violated Section 8(a)(1)
and (5) of the National Labor Relations Act. Although
properly served copies of the charges, amended
charges, and complaint, the Respondent has failed to
file a timely answer.
On June 23, 1992, the General Counsel filed a Mo-
tion for Summary Judgment. On June 26, 1992, 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 Respondent filed a request
for extension of time within which to respond and was
granted an extension until July 15, 1992. Thereafter,
the Respondent filed a response.
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 consolidated complaint shall be considered to be
admitted to be true and shall be so found by the
Board.’’ Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region,
by letter dated May 26, 1992, notified the Respondent
that unless an answer was received immediately a Mo-
tion for Summary Judgment would be filed.
As a response to the Notice to Show Cause, the Re-
spondent on July 14, 1992, filed a letter with the
Board answering the unfair labor practice allegations
of the complaint. The letter contains no explanation of
why the Respondent failed to answer the complaint de-
spite appropriate notice and a warning that if no an-
swer was forthcoming by the given date, a Motion for
Summary Judgment would be filed. The Respondent’s
attack on the complaint’s factual allegations, while ap-
propriate in a timely answer, simply came too late
when included for the first time in the response to the
Notice to Show Cause. See generally Middle Eastern
Bakery, 243 NLRB 503, 504 fn. 1 (1979); Petitto
Bros., Inc., 291 NLRB No. 139, slip op. at 2–3 (Nov.
30, 1988) (not reported in Board volumes).
We find that the Respondent has not shown good
cause for its failure to file a timely answer. In accord-
ance with the Rules set forth above, the allegations in
the complaint are deemed to be admitted to be true.
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, has been engaged in
the operation of a commercial laundry at Louisa, Ken-
tucky. During the 12 months preceding the issuance of
the consolidated complaint, the Respondent provided
services valued in excess of $50,000 for Our Lady of
Bellefonte Hospital, a corporation engaged in the oper-
ation of a hospital providing in-patient medical care at
Ashland, Kentucky. During the 12 months preceding
the issuance of the consolidated complaint, Our Lady
of Bellefonte Hospital derived gross revenues in excess
of $250,000. During the 12 months preceding the
issuance of the consolidated complaint, Our Lady of
Bellefonte Hospital purchased and received goods at
its Ashland, Kentucky facility valued in excess of
$50,000 directly from points outside the Common-
wealth of Kentucky. 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
About February 28, 1992, the Respondent gave false
information to M.E.B., Inc. d/b/a J.J. Jordan Geriatric
Center (M.E.B.), another employer, concerning an al-
leged medical problem of a prior employee of the Re-
spondent who was currently employed by M.E.B. be-
cause the employee intended to file unfair labor prac-
tice charges with the Board and because of the em-
ployee’s grievance-filing activities while in the employ
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Any provisions of employee benefit fund agreements are variable
and complex. To the extent that these are present in the repudiated
agreement, we leave to the compliance stage the question of whether
the Respondent must pay any additional amounts into the benefit
funds in order to satisfy our ‘‘make whole’’ remedy. See
Merryweather Optical Co., 240 NLRB 1213, 1216 (1979).
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.’’
of the Respondent. This false information led to the
employee’s discharge by M.E.B.
About May 1, 1990, the Respondent entered into a
lease with an option to purchase from M.E.B. the Lou-
isa Seven Day Laundry which had been operated by
M.E.B. At that time, the employees of M.E.B. were
represented by the Union and were covered by a con-
tract between M.E.B. and the Union effective by its
terms from July 1, 1989, through June 30, 1992. When
the Respondent entered into the lease purchase agree-
ment with M.E.B., the Respondent agreed to assume
any and all obligations arising under the contract be-
tween the Union and M.E.B. and to apply the terms
of that contract to its employees in the following unit
appropriate for purposes of collective bargaining with-
in the meaning of Section 9(b) of the Act:
All full and part-time employees employed by Re-
spondent at its Louisa, Kentucky facility, exclud-
ing all confidential employees, office clerical em-
ployees, guards and supervisors as defined in the
Act.
About July 15, 1990, the Respondent and the Union
entered into a memorandum of agreement in which the
Respondent recognized the Union as the representative
of the employees in the unit and adopted and agreed
to apply the contract to the employees in the unit. At
all times since July 15, 1990, the Union has been the
exclusive collective-bargaining representative of the
employees in the unit within the meaning of Section
9(a) of the Act.
About January 2, 1992, the Respondent repudiated
the contract and at all times thereafter the Respondent
has failed and refused to apply the terms of the con-
tract to the employees in the unit.
CONCLUSIONS OF LAW
1. By providing false information to another em-
ployer about its former employee because of the em-
ployee’s intent to file unfair labor practice charges
with the Board and because of the employee’s griev-
ance-filing activities, the Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
2. By repudiating its contract with the Union, the
Respondent has engaged in unfair labor practices af-
fecting commerce 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.
We shall order the Respondent to adhere to the
terms of the contract.2
The Respondent shall also make its employees
whole for any losses attributable to its failure to adhere
to the contract, as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940
(9th Cir. 1981). All payments to employees shall be
made with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Mays Corporation d/b/a Tri-County Com-
mercial Laundry, Louisa, Kentucky, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Providing false information regarding any former
employee because of the employee’s intent to file un-
fair labor practice charges with the Board and because
of the employee’s grievance-filing activities.
(b) Failing and refusing to bargain in good faith
with the Union as the exclusive collective-bargaining
representative of its unit employees by repudiating its
collective-bargaining agreement with the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Bargain in good faith with the Union as the rep-
resentative of its employees in the following appro-
priate bargaining unit:
All full and part-time employees employed by Re-
spondent at its Louisa, Kentucky facility, exclud-
ing all confidential employees, office clerical em-
ployees, guards and supervisors as defined in the
Act.
(b) Honor all the terms and conditions of employ-
ment of the collective-bargaining agreement.
(c) Make its employees whole, with interest, for any
losses attributable to its failure to honor the provisions
of the collective-bargaining agreement, as provided by
the remedy section of this decision.
(d) Post at its facility in Louisa, Kentucky, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of
737TRI-COUNTY COMMERCIAL LAUNDRY
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s
authorized 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.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payments records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amounts due under
the terms of this Order.
(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 provide false information regarding
any former employee because of the employee’s intent
to file unfair labor practice charges with the Board and
because of the employee’s grievance-filing activities.
WE WILL NOT fail and refuse to bargain in good
faith with District 1199, the Health Care and Social
Service Union, Service Employees International Union,
AFL–CIO, the exclusive representative of our employ-
ees in the following unit, by failing and refusing to
honor the terms and conditions of employment set
forth in our contract with the Union. The unit is:
All full and part-time employees employed by Re-
spondent at its Louisa, Kentucky facility, exclud-
ing all confidential employees, office clerical em-
ployees, guards 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 honor our collective-bargaining agreement
with the Union and make our employees whole for
losses, if any, which they have suffered as a result of
our refusal to honor the agreement.
MAYS CORPORATION D/B/A TRI-COUNTY
COMMERCIAL LAUNDRY