Newark Pipeline Co.

National Labor Relations Board - Board Decisions

Mar 7, 1973

202 N.L.R.B. 234 (N.L.R.B. 1973)

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newark Pipeline Company and International Union of
Operating Engineers, Local No. 18, AFL-CIO.
Case 8-CA-7127
March 7, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a charge filed on July 20, 1972, by Interna-
tional Union of Operating Engineers, Local No. 18,
AFL-CIO, herein called the Union, and duly served
on Newark Pipeline Company, herein called the
Respondent, and on District 50, Allied and Techni-
cal Workers of the United States and Canada, herein
called District 50, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 8, issued a complaint on
September 6, 1972, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and (2) and 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of
hearing before an Administrative Law Judge were
duly served on the parties to this proceeding,
including District 50.
With respect to the unfair labor practices, the
complaint alleges in substance that the Respondent
violated Section 8(a)(1) and (2) of the Act by (1) on
or about June 23, 1972, threatening employees that it
would close its plant if they did not vote in a union
by July 1, 1971, and that employees who failed or
refused to not vote in a union by July 1, 1972, and
that employees who failed or refused to support
District 50 "can quit and go elsewhere"; (2) on or
about June 23, 1972, requiring employees to attend a
meeting which the Respondent also attended and at
which it voted, encouraged employees to consider
favorably District 50, threatened employees with
discharge unless they signed District 50 authorization
cards, and nominated a union steward for District 50
who was instructed to sign up employees; (3) during
the week of June 23, 1972, took possession of the
authorization cards in favor of District 50 and gave
them to a District 50 representative; and (4) during
the week of June 12, 1972, negotiated a tentative
collective-bargaining agreement when District 50 did
not represent a majority of employees and executed
that agreement on July 1, 1972, when District 50 still
did not represent an uncoerced majority.
The Respondent thereafter filed a timely answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint. By letter dated
October 6, 1972, the Respondent filed a motion to
withdraw its answer advising that the motion had
been served on all interested parties, including
District 50, and that it presumed that the Union, the
Charging Party herein, would probably move for
summary judgment. On October 17, 1972, the
Regional Director issued an order granting with-
drawal of answer, a copy of which was sent to, and
received by, District 50.
On November 2, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 9,
1972, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for
Summary Judgment should not be granted. On the
same date, the United Steelworkers of America,
herein called Steelworkers, moved the Regional
Director to intervene herein on the ground that, as a
result of its recent merger with District 50, it had an
interest in the instant matter. Thereafter, counsel for
the General Counsel opposed the motion in his
memorandum in opposition to United Steelworkers
of America's motion to intervene contending that the
motion was untimely and should be denied. Both the
motion to intervene as an interested party and the
memorandum in opposition were filed with the
Board on November 17, 1972. By order of November
27, 1972, the Board granted the Steelworkers' motion
to intervene for the purpose of filing directly with the
Board a response to the Notice To Show Cause on or
before December 8, 1972. The Steelworkers thereaf-
ter filed an apparent response to Notice To Show
Cause, called Answer, which was received by the
Board on December 11, 1972. In its response, the
Steelworkers, as a party to a collective-bargaining
agreement with the Respondent, admitted in part
and denied in part the allegations of the complaint
and requested a hearing before an Administrative
Law Judge. The Respondent did not file a response
to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended , provides as follows:
The respondent shall, within 10 days from the
service of the complaint, file an answer thereto.
The respondent shall specifically admit, deny, or
explain each of the facts alleged in the complaint,
unless the respondent is without knowledge, in
202 NLRB No. 14
NEWARK PIPELINE COMPANY 235
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 explained 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.
The complaint served on the Respondent and
District 50 also stated that unless an answer was filed
to the complaint within 10 days from the service
thereof, "all of the allegations of the complaint shall
be deemed to be admitted to be true and may be so
found by the Board." Although the Respondent
timely filed an answer, its subsequent motion to
withdraw the answer was granted by the Regional
Director in his order of October 17, 1972. The
withdrawal of an answer of necessity has the same
effect as a failure to file an answer by the Respon-
dent.'
With respect to the Steelworkers, it appears, from
the General Counsel's opposition to the Steelwork-
ers' request to intervene, that District 50, with whom
the Steelworkers merged on August 9, 1972, had been
served with the charge, complaint and notice, the
order granting the Respondent's request to withdraw
its answer, and the Motion for Summary Judgment
herein and had not filed an answer within 10 days
after September 9, 1972, when the complaint had
been served on District 50. The opposition also
stated that on November 9, 1972, the Steelworkers
for the first time expressed its interest in this
proceeding by filing with the Regional Director a
motion to intervene on the basis of its merger with
District 50. The Steelworkers' response to the Notice
To Show Cause on December 11, 1972, failed to
controvert the aforesaid factual service averments of
the General Counsel's opposition and, therefore, they
stand admitted. It was not until December 11, 1972,
long after the time for filing an answer to the
complaint had expired, that the Steelworkers filed its
response in the form of an answer denying the unfair
labor practice allegations of the complaint herein.
Neither in the response nor in its motions to
intervene and opposition to summary judgment did
the Steelworkers offer any excuse, explanation, or
justification for its failure, and that of District 50, to
file an answer or other objection to allegations of the
complaint naming District 50 as an unlawfully
assisted union2 timely with respect to the issuance of
the complaint or the order granting Respondent's
request to withdraw its answer. Accordingly, we find
that the Steelworkers' answer, whether construed as
an answer to the complaint or merely as opposition
to the naming of District 50 as an unlawfully assisted
union, was untimely filed and that the filing of such
an untimely answer has the same effect as a failure to
file an answer.
As the Respondent has withdrawn its answer and
as neither District 50 nor the Steelworkers, without
good cause to the contrary, has filed a timely answer
or other opposition, the allegations of the complaint
herein are deemed to be admitted to be true and are
so found to be true in accordance with the Board's
Rules and Regulations. We shall, accordingly, grant
the General Counsel's Motion for Summary Judg-
ment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation with
principal offices and place of business located in
Newark, Ohio, where it is engaged in the installation
of natural gas pipelines. Annually, in the course and
conduct of its business, the Respondent performs
services valued in excess of $250,000 in the State of
Ohio for Columbia Gas of Ohio, Inc., a wholly
owned subsidiary of Columbia Gas Systems, Inc.,
which enterprise is a public utility affecting com-
merce with a gross annual revenue of $250,000.
Annually, in the course and conduct of its business
operations, Columbia Gas of Ohio, Inc., purchases
and receives goods valued in excess of $50,000
directly from suppliers outside the State of Ohio.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local
No. 18, AFL-CIO, and District 50, Allied and
Technical Workers of the United States and Canada,
are labor organizations within the meaning of
Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
On or about June 23, 1972, the Respondent (1)
threatened employees that it would close the plant
1 Nickey Chevrolet Sales, Inc, 199 NLRB No. 71.
2 Cf Retail Clerks Union 1059, Retail Clerks International Association,
AFL-CIO v. N.LRB., 348 F .2d 369 (C.A.D.C.).
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless a union was voted in by July 1, 1972, and
threatened all employees who failed or refused to
support District 50 with the statement that "any man
who does not want to go along with the majority, can
quit and go elsewhere" and (2) instructed its
employees to attend a mandatory meeting which was
called to determine a collective-bargaining represent-
ative and at which the Respondent (a) encouraged
employees to consider District 50 because it would
be more favorably disposed toward such union, (b)
compared contracts of the Union and District 50,
making comments favorable only towards District
50, (c) threatened discharge of employees who did
not sign District 50 authorization cards within 30
days, (d) conducted a secret ballot election to
determine whether or not District 50 should be the
representative of the employees in which election
only District 50 was considered and in which it
voted, and (e) nominated a union steward for
District 50 whom it instructed to sign up the
employees with the District 50 authorization cards
which it produced.
During the week of June 23, 1972, the Respondent
took possession of the authorization cards in favor of
District 50 and on or about July 1, 1972, gave them
to a representative of District 50.
During the week of June 12, 1972, or thereabouts,
the Respondent negotiated a tentative collective-
bargaining agreement with District 50 when that
union did not represent a majority of the employees
and thereafter on July 1, 1972, when District 50 still
did not represent an uncoerced majority, executed
the aforesaid tentative agreement.
Accordingly, we find that the Respondent, by the
conduct described hereinabove in section III, inter-
fered with, restrained, and coerced and is interfering
with, restraining, and coercing its employees in the
exercise of their rights guaranteed in Section 7 of the
Act and did render unlawful aid and assistance to
District 50, and by such conduct the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (2) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (2) of the Act, we
shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate
the policies of the Act. 0
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Newark Pipeline Company is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of Operating Engineers,
Local No. 18, AFL-CIO, and District 50, Allied and
Technical Workers of the United States and Canada,
are labor organizations within the meaning of
Section 2(5) of the Act.
3. By the acts and conduct described in section
III, above, the Respondent has interfered with,
restrained, and coerced and is interfering with,
restraining, and coercing its employees in the
exercise of the rights guaranteed to them under
Section 7 of the Act and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Newark Pipeline Company, Newark, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Rendering aid and assistance to District 50,
Allied and Technical Workers of the United States
and Canada, or any other labor organization of its
employees.
(b) Threatening its employees that it would close its
plant unless a union was voted in by a certain date.
(c) Threatening its employees who failed and
refused to support District 50, Allied and Technical
Workers of the United States and Canada, or any
other labor organization, that they can quit and go
elsewhere.
(d) Requiring its employees to attend a meeting to
determine a collective-bargaining representative and
attending the meetin3.
(e) Encouraging its employees at such a meeting to
consider District 50, Allied and Technical Workers
NEWARK PIPELINE COMPANY 237
of the United States and Canada, or any other labor
organization, to which it was more favorably
disposed.
(f) Comparing contracts of International Union of
Operating Engineers, Local 18, AFL-CIO, with
those of District 50, Allied and Technical Workers of
the United States and Canada, or any other labor
organization, and making favorable comments only
towards District 50, Allied and Technical Workers of
the United States and Canada, or any other favored
labor organization.
(g) Threatening its employees with discharge for
failing to sign authorization cards of the District 50,
Allied and Technical Workers of the United States
and Canada, or of any other labor organization.
(h) Conducting and voting in a secret ballot
election in which only District 50, Allied and
Technical Workers of the United States and Canada,
or any other labor organization, is considered by the
employees.
(i) Nominating a steward for District 50, Allied and
Technical Workers of the United States and Canada,
or any other labor organization, and instructing him
to have its employees sign authorization cards of
District 50, Allied and Technical Workers of the
United States and Canada, or any other labor
organization.
(j) Taking possession of signed authorization cards
and turning them over to District 50, Allied and
Technical Workers of the United States and Canada,
or any other labor organization, for which they have
been signed.
(k) Negotiating and executing an agreement with
District 50, Allied and Technical Workers of the
United States and Canada, or any other labor
organization, when it does not represent an un-
coerced majority of the employees.
(1) Negotiating and contracting with District 50,
Allied and Technical Workers of the United States
and Canada, as representative of any of its employ-
ees for the purpose of dealing with said organization
concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other terms and
conditions of employment, unless and until said
labor organization shall have demonstrated its
exclusive majority status pursuant to a Board-con-
ducted election among its employees.
(m) Giving effect to, performing, or in any way
enforcing in favor of District 50, Allied and Techni-
cal Workers of the United States and Canada, the
collective-bargaining agreement executed on July 1,
1972, or any modifications, extensions, supplements,
or renewals thereof, or any other contract, agree-
ment, or understanding entered into with said labor
organization relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other
terms and conditions of employment, unless and
until said labor organization shall have demonstrated
its exclusive majority status pursuant to a Board-
conducted election among its employees.
(n) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
District 50 as the collective-bargaining representative
of any of its employees unless and until said labor
organization shall have demonstrated its exclusive
majority status pursuant to a Board-conducted
election among its employees.
(b) Post at its Newark, Ohio, location copies of the
attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director
for Region 8, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 In the event that 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."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT render aid or assistance to
District 50, Allied and Technical Workers of the
United States and Canada, or any other labor
organization of our employees.
WE WILL NOT threaten our employees that we
will close our plant unless a union is voted in by a
certain date.
WE WILL NOT threaten our employees who fail
and refuse to support District 50, Allied and
Technical Workers of the United States and
Canada, or any other labor organization, that
they can quit and go elsewhere.
WE WILL NOT require our employees to attend a
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting to determine a collective-bargaining
representative and WE WILL NOT attend the
meeting.
WE WILL NOT encourage our employees at such
a meeting to consider District 50, Allied and
Technical Workers of the United States and
Canada, or any other labor organization, to which
we are more favorably disposed.
WE WILL NOT compare contracts of Interna-
tional Union of Operating Engineers , Local 18,
AFL-CIO, with those of District 50, Allied and
Technical Workers of the United States and
Canada, or any other labor organization, and
make favorable comments only towards District
50, Allied and Technical Workers of the United
States and Canada, or any other favored labor
organization.
WE WILL NOT threaten our employees with
discharge for failing to sign authorization cards of
District 50, Allied and Technical Workers of the
United States and Canada, or any other labor
organization.
WE WILL NOT conduct and vote in a secret
ballot election in which only District 50, Allied
and Technical Workers of the United States and
Canada , or any other labor organization, is
considered by our employees.
WE WILL NOT nominate a steward for Distnct
50, Allied and Technical Workers of the United
States and Canada, or any other labor organiza-
tion , and instruct him to have our employees sign
authorization cards of Distnct 50, Allied and
Technical Workers of the United States and
Canada, or any other labor organization.
WE WILL NOT take possession of signed
authorization cards and turn them over to District
50, Allied and Technical Workers of the United
States and Canada , or any other labor organiza-
tion , for which they have been signed.
WE WILL NOT negotiate and execute an agree-
ment with District 50, Allied and Technical
Workers of the United States and Canada, or any
other labor organization , when it does not
represent an uncoerced majority of the employ-
ees.
WE WILL NOT negotiate and contract with
District 50, Allied and Technical Workers of the
United States and Canada , as representative of
any of our employees for the purpose of dealing
with said organization concerning grievances,
labor disputes , wages, rates of pay, hours of
employment , or other terms and conditions of
employment , unless or until said labor organiza-
tion shall have demonstrated its exclusive majori-
ty status pursuant to a Board-conducted election
among our employees.
WE WILL NOT give effect to, perform, or in any
way enforce in favor of District 50, Allied and
Technical Workers of the United States and
Canada , the collective-bargaining agreement ex-
ecuted on July 1, 1972 , or any modifications,
extensions , supplements , or renewals thereof, or
any other contract , agreement , or understanding
entered into with said labor organization relating
to grievances , labor disputes , wages , rates of pay,
hours of employment , or other terms and condi-
tions of employment , unless and until said labor
organization shall have demonstrated its exclusive
majority status pursuant to a Board -conducted
election among our employees. '
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
NEWARK PIPELINE
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1695 Federal Office Building, 1240
East 9th Street, Cleveland, Ohio 44199, Telephone
216-522-3715.