M. J. McNally, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1991

302 N.L.R.B. 120 (N.L.R.B. 1991)

120
302 NLRB No. 18
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Notice to Show Cause was served on the Respondent by certified mail
at its business address in Danbury, Connecticut, the same address printed on
the letterhead of the Respondent’s letter to the Acting Regional Director. The
Notice to Show Cause was returned unclaimed. The Respondent’s refusal or
failure to claim certified mail does not serve to defeat the purposes of the Act.
Delta Star Trucking, 288 NLRB No. 63 fn. 1 (Apr. 22, 1988); Sheet Metal
Workers Local 49 (Driver-Miller Plumbing), 124 NLRB 888, 890 (1959).
2 Sec. 102.20 of the Board’s Rules and Regulations provides that the allega-
tions in the complaint shall be deemed admitted if an answer is not filed with-
in 14 days from service of the complaint.
Sec. 102.20 further states, inter alia, that an answer to a complaint 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.
3 Member Devaney notes that the Respondent’s pro se answer denies the
gravamen of the complaint.
M. J. McNally, Inc. and United Brotherhood of
Carpenters and Joiners of America, AFL–CIO,
Local Union 210. Case 34–CA–4169
March 20, 1991
ORDER DENYING MOTION FOR SUMMARY
JUDGMENT AND REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by the Union February 7, 1989,
the General Counsel of the National Labor Relations
Board issued a complaint March 23, 1989, against M.
J. McNally, Inc., the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National Labor
Relations Act. Copies of the charge and complaint
were properly served on the Respondent. On May 19,
1989, the Respondent filed a one-page letter purporting
to be an answer.
On June 8, 1989, the General Counsel filed a Mo-
tion for Summary Judgment, with exhibits attached.
On June 13, 1989, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Union filed a response in support of the motion. The
Respondent filed no response.1 The allegations in the
motion are therefore undisputed.
According to the Motion for Summary Judgment,
the Acting Regional Director, by letter dated May 9,
1989, notified the Respondent of the requirements of
Section 102.20,2 and advised that unless an answer
was received by the close of business on May 22,
1989, a Motion for Summary Judgment would be filed.
By a one-page letter dated May 17, 1989, the Re-
spondent’s president denied ‘‘the fact in Paragraph 12
[of the complaint]’’ that he ‘‘abrogated and refused to
abide by the terms of the collective-bargaining agree-
ment,’’ and asserted that ‘‘I feel the union did not live
up to its agreement by sending me inferior carpenters
who were unable to perform the job, and which cost
me considerable time and money to correct their mis-
takes and redo the work.’’ The Respondent apparently
is not represented by counsel in this proceeding.
The General Counsel, although noting the filing of
an ‘‘Answer’’ by the Respondent, moves that ‘‘all alle-
gations of the Complaint, which respondent has failed
to answer, b[e] deemed to be admitted to be true’’; and
that the Board issue a Decision and Order finding that
the Respondent violated Section 8(a)(1) and (5) of the
Act without the taking of evidence in support of the
allegations in the complaint.
The Board, having duly considered the matter, finds
that summary judgment is not appropriate here. The
Respondent’s May 17, 1989 letter specifically refers to
complaint paragraph 12 when it denies that the Re-
spondent abrogated and refused to abide by the collec-
tive-bargaining agreement. The Respondent’s letter
thus clearly denies the complaint paragraph containing
the operative facts of the alleged unfair labor practices,
and effectively denies conclusory paragraph 13, which
alleges that the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and
(5). While the Respondent’s additional argument that
the Union did not live up to its agreement would not
constitute a defense to the allegations in the complaint,
this is not relevant to deciding the sufficiency of the
answer. The Respondent’s letter therefore raises sub-
stantial and material issues of fact and law which can
best be resolved after a hearing before an administra-
tive law judge.
Although the Board recognizes the importance of
strict compliance with procedural rules, including those
concerning the manner of filing an answer to a com-
plaint, the Board also is cognizant of the fact that the
law favors a determination on the merits. Under the
circumstances of this case, the allegations in the com-
plaint shall not be deemed admitted to be true.3 Ac-
cordingly,
IT IS ORDERED that the General Counsel’s Motion
for Summary Judgment is denied.
IT IS FURTHER ORDERED that this proceeding be re-
manded to the Regional Director for Region 34 for fur-
ther appropriate action.
CHAIRMAN STEPHENS, dissenting.
I would grant the General Counsel’s Motion for
Summary Judgment. The complaint in this proceeding
alleges that the Respondent has since October 4, 1988,
been bound by the terms of a collective-bargaining
agreement whose term expires April 30, 1991. The
complaint further alleges that since on or about No-
vember 7, 1988, the Respondent has abrogated and re-
fused to abide by the terms of that collective-bargain-
ing agreement in violation of Section 8(a)(5) and (1).
The Respondent thereafter filed a letter answer to the
complaint denying that it abrogated and refused to
abide by the terms of that agreement and asserting, ‘‘I
feel that the union did not live up to its agreement by
sending me inferior carpenters who were unable to per-
121M. J. MCNALLY, INC.
form the job, and which cost me considerable time and
money to correct their mistakes and redo the work.’’
Contrary to my colleagues, I do not view this latter
sentence as being independent of the Respondent’s de-
nial that it abrogated the terms of the bargaining agree-
ment. In context, it is apparent that the Respondent’s
sole contention is that the Union failed to fulfill its re-
sponsibility to refer qualified carpenters, and that this
constitutes a defense to any claimed breach on the Re-
spondent’s part to fulfill its obligations under the con-
tract. In the absence of any claim by the Respondent,
either in its answer or pursuant to a response to the
Board’s Notice to Show Cause, that the Respondent’s
denial rests on a ground other than the asserted de-
fense, I find unwarranted the majority’s decision to
parse the Respondent’s answer out of context. I further
find that the Respondent’s asserted affirmative defense
does not justify its abrogation of the contract, and that
the Respondent therefore has violated Section 8(a)(5)
and (1).