Coulter's Carpet Service, 732 (2002)

November 22, 2002

DECISION AND ORDER

BY MEMBERS LIEBMAN, COWEN, AND BARTLETT

The General Counsel seeks summary judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union on December 21, 2001, the General Counsel issued the complaint on February 28, 2002, against Coulter's Carpet Service, Inc., the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the Act. The Respondent failed to file an answer.

On April 5, 2002, the General Counsel filed a Motion for Summary Judgment with the Board. On April 9, 2002, 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 no response. The allegations in the motion are therefore undisputed.

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, 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 will be considered admitted. Further, the undisputed allegations in the Motion for Summary Judgment disclose that the Region, by letter dated March 25, 2002, notified the Respondent that unless an answer were received by April 1, 2002, 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 General Counsel's Motion for Summary Judgment.

On the entire record, the Board makes the following FINDINGS OF FACT

1. JURISDICTION

   At all material times, the Respondent, a Nevada corporation with an office and place of business in Sparks, Nevada, has been engaged in retail and nonretail sale and installation of floor coverings. During the 12-month period preceding the issuance of the complaint, the Respondent, in course and conduct of its business operations, received gross revenues in excess of $500,000, and during that same period purchased and received goods valued in excess of $5000 that originated from points

   DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

   located outside the State of Nevada. 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.

2. ALLEGED UNFAIR LABOR PRACTICES

   At all times material herein, Curtis Wood occupied the position of Respondent's president, and is a supervisor of the Respondent within the meaning of Section 2(11) of the Act, and an agent of the Respondent within the meaning of Section 2(13) of the Act.

   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 full-time and regular part-time employees performing work in the job classifications set forth and described in Article I "Recognition Clause" of the July 1, 2001 to June 30, 2004 collective bargaining agreement between the Union and Respondent; excluding all other employees, guards and supervisors as defined in the Act.

   Since at least July 1, 1998, and at all times material herein, the Union has been the designated exclusive collective-bargaining representative of the employees in the unit, and since that date the Union has been recognized as the representative by the Respondent, an employer engaged in the building and construction industry, without regard to whether the majority status of the Union has been established under the provisions of Section 9 of the Act. Such recognition has been embodied in successive collective-bargaining agreements, the most recent of which is effective for the period July 1, 2001 to June 30, 2004 (the Agreement).

   At all times since July 1, 2001, the Union, by virtue of Section 8(f) and 9(a) of the Act, has been, and is, the exclusive representative of the employees in the unit for the purpose of collective bargaining with respect to wages, hours of employment, and other terms and conditions of employment.

   On about May 18, 2001, the Union and the Respondent reached full and complete agreement on the terms and conditions of employment of the employees in the unit to be incorporated in a collective-bargaining agreement, which is effective for the period of July 1, 2001 to June 30, 2004.

   Since about July 3, 2001, the Union has requested that the Respondent execute a written contract containing the Agreement.

   On about July 17, 2001, the Respondent, acting through Curtis Wood, orally notified the Union that it would not sign the Agreement, and since that date has failed and refused to execute the Agreement.

   Since on about July 1, 2001, the Respondent has made changes in the terms and conditions of employment of the unit employees including, but not limited to, discontinuing trust fund payments on behalf of unit employees and ceasing use of the Union's hiring hall.

   These changes relate to the wages, hours of employment, and other terms and conditions of employment of the employees in the unit, and are mandatory subjects for the purpose of collective bargaining. The Respondent made these changes without the consent of the Union.

   The Board has held that an employer's refusal to sign an 8(f) contract to which it orally agreed violates Section 8(a)(5) and (1) of the Act. Ryan Heating Co., 297 NLRB 619, 620 (1990), enfd. denied on other grounds 942 F.2d 1287 (8th Cir. 1991); Clarence Spight Contractor, 312 NLRB 147 (1993). It follows that the aforementioned unilateral changes during what should have been the effective term of the Respondent's 8(f) agreement with the Union also violated Section 8(a)(5).

   Contrary to our dissenting colleague, we do not find that the complaint's undisputed allegations fail to establish that the parties were privileged to enter into an 8(f) agreement. Section 8(f) permits "an employer engaged primarily in the building and construction industry" and "a labor organization of which building and construction employees are members" to enter into a collective-bargaining agreement without regard to whether the union's majority status has been previously established under Section 9(a). The complaint here simply alleges that the Respondent, which is engaged in the retail and nonretail sale and installation of floor coverings, is an employer engaged in the building and construction industry. The Board has held that such employers can qualify to enter into 8(f) agreements. Painters Local 1247 (Indio Paint & Rug Center), 156 NLRB 951 (1966). The dissent, however, would require that the complaint specifically allege, in literal accord with the statutory provision, that the Respondent is primarily engaged in the building and construction industry. While we agree that it would have been preferable to include "primarily" in the complaint allegation, we do not find that the failure to do so defeats a motion for summary judgment in the absence of an answer raising any issue as to the amount of construction work actually performed by the Respondent. We therefore find that the Respondent's refusal to sign its 8(f) agreement with the Union and the subsequent unilateral changes violated the Act as alleged.

   Our dissenting colleague's contrary view exceeds the requirements for a satisfactory complaint pleading. "All that is required of the complaint is that there be a plain statement of the facts claimed to constitute the unfair labor practice that Respondents may be put upon their defense. Moreover, a complaint in an administrative proceeding may not purport to set out the elements of a cause of action, like a declaration at law or a bill in equity." Local 363 Boilermakers, 123 NLRB 1877, 1913- 1914 (1959).

   CONCLUSION OF LAW

   By the acts and conduct described above, the Respondent has failed and refused, and is failing and refusing, to bargain collectively and in good faith with the representative of its employees, and has thereby 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 designed to effectuate the policies of the Act. Specifically, having found that the Respondent has failed and refused to sign its May 18, 2001 agreement containing the terms and conditions of employment of the...