A 1 Wholesale Seamless Guttering

National Labor Relations Board - Board DecisionsOct 14, 1988

291 N.L.R.B. 366 (N.L.R.B. 1988)

366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cindy and Harold F Fitzgerald d/b/a A 1 Whole sale Seamless Guttering and Local 36, Sheet Metal Workers International Association, AFL- CIO Case 14-CA-19008 October 14 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT Upon a charge filed by the Union on June 19 1987 and an amended charge filed on July 27 1987 the General Counsel of the National Labor Relations Board issued a complaint on July 28 1987 against Cindy and Harold F Fitzgerald d/b/a A 1 Wholesale Seamless Guttering 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 charge and complaint the Respondent has failed to answer On September 22 1987 the General Counsel filed a Motion for Default Summary Judgment On September 28 1987 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 On August 25 1988 the Board issued a Supplemental Notice to Show Cause why the motion should not be granted The Respondent again filed no re sponse The allegations in the motion are therefore undisputed The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel Ruling on Motion for Default Summary Judgment Section 102 20 of the Board s Rules and Regula tions 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 complaint shall be deemed to be admitted to be true and shall be so found by the Board Further the undisputed alle gations in the Motion for Summary Judgment dis close that the General Counsel by letters dated August 12 and 18 1987 notified the Respondent that unless an answer was received immediately 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 Counsels Motion for Default Summary Judgment On the entire record the Board makes the fol lowing FINDINGS OF FACT I JURISDICTION The Respondent a Missouri partnership is en gaged in the nonretail distribution and installation of seamless guttering at its facility in Pevely Mis sours In the course of its operations the Respond ent annually performs services valued in excess of $50 000 in States other than the State of Missouri During the 12 month period ending June 30 1987 the Respondent purchased and received at its Pevely Missouri facility products goods and ma terials valued in excess of $50 000 from other enter prises located within the State of Missouri each of which other enterprises had received the products goods and materials directly from points outside the State of Missouri We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the mean ing of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES Since about March 18 1987 a majority of the Respondents employees in the unit designated the Union as their collective bargaining representative Since about March 27 1987 the Respondent has recognized the Union as the employees representa tive Recognition has been embodied in a letter of agreement binding the Respondent to a collective bargaining agreement effective until April 30 1989 The unit of employees set forth in the collective bargaining agreement between the Respondent and the Union is a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act i At all times since March 18 1987 and at all ma terial times since the Respondent signed the letter of agreement the Union by virtue of Section 9(a) of the Act has been and is the exclusive represent ative of the unit for the purposes of collective bar gaining with respect to rates of pay wages hours of employment and other terms and conditions of employment Since about April 30, 1987 and continuing to date the Respondent has been and is failing and refusing to comply with the terms and provisions of the current collective bargaining agreement by the following acts and conduct (1) failing and re fusing to pay to its employees in the unit the wage 1 The unit description is set out in the agreement but was not included in the pleadings 291 NLRB No 58 A I SEAMLESS GUTTERING rates and overtime pay set forth in the agreement (2) failing and refusing to make fringe benefit con tributions to the appropriate fringe benefit funds on behalf of the employees in the unit 2 and (3) failing and refusing to file periodic fringe benefit reports with the Union By these acts the Respondent has repudiated the collective bargaining agreement On June 22 1987 the Union by its attorney re quested the Respondent to furnish it with certain information The requested information consisted of written reports listing the Respondents sheet metal employees and the amount of money that the Respondent owed to the trust funds Since June 22 1987 the Respondent has failed and refused and continues to fail and refuse to furnish the Union with the requested information The information is necessary for and relevant to the Union s perform ance of its function as the exclusive collective bar gaining representative Based on the above we find that the Respond ent since April 30 1987 has failed to comply with the terms and provisions of the collective bargain ing agreement has failed to furnish the Union with information necessary and relevant to the Union s role as collective bargaining agent and has thereby violated Section 8(a)(5) and (1) of the Act 3 CONCLUSIONS OF LAW 1 By failing and refusing to comply with the terms and provisions of the collective bargaining agreement the Respondent has refused to bargain collectively with the Union and thereby has en gaged 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 2 By failing and refusing to supply the Union with necessary and relevant information the Re spondent has engaged in unfair labor practices of fecting 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 4 2 These terms and conditions are mandatory subjects of bargaining 3 In light of our conclusion that the Respondent violated Sec 8(a)(5) and (1) we find it unnecessary to pass on the General Counsels motion concerning the independent 8(a)(1) allegation in the complaint This alle gation is redundant being grounded on the identical facts that support the 8(a)(5) and ( 1) violations 4 The General Counsel requested a visitatonal provision subject to the supervision of the United States court of appeals enforcing this Order Under the circumstances of this case we find it unnecessary See Chero kee Marine Terminal 287 NLRB 1080 (1988) 367 We shall order the Respondent to file periodic fringe benefit reports with the Union We shall also order the Respondent to provide the Union on re quest with information necessary for collective bargaining Having found that the Respondent violated Sec tion 8(a)(5) and (1) of the Act by failing to give full force and effect to the wages and overtime provi sions of the collective bargaining agreement the Respondent will be ordered to make all bargaining unit employees adversely affected by these actions whole for losses incurred by virtue of these ac tions5 in the manner set forth in Ogle Protection Service 183 NLRB 682 (1970) with interest on any amount due paid in the manner prescribed in New Horizons for the Retarded 6 Having further found that the Respondent violat ed Section 8(a)(5) and (1) of the Act by failing and refusing to make fringe benefit contributions to the appropriate fringe benefit funds we shall order the Respondent to make whole its unit employees by making all contributions that have not been paid and that would have been paid but for the Re spondent s unlawful discontinuance of the pay merits 7 In addition the Respondent shall reimburse unit employees for any expenses ensuing from the Respondents failure to make such required pay ments 8 as set forth in Kraft Plumbing 252 NLRB 891 fn 2 (1980) enfd 661 F 2d 940 (9th Cir 1981) such amounts to be computed in the manner set forth in Ogle Protection Service supra with interest as prescribed in New Horizons for the Retarded supra and to post an appropriate notice ORDER The National Labor Relations Board orders that the Respondent Cindy and Harold F Fitzgerald d/b/a A 1 Wholesale Seamless Guttering Pevely Missouri its partners officers agents successors and assigns shall 1 Cease and desist from (a) Refusing to bargain with Local 36 Sheet Metal Workers International Association AFL- CIO by failing to abide by the terms and provisions of the collective bargaining agreement by failing and refusing to pay to its unit employees the wage rates and overtime pay set forth in the agreement by failing and refusing to make fringe benefit con 5 See Neosho Paper Products 286 NLRB No 64 (Sept 30 1987) (not reported in Board Volumes) 5 283 NLRB 1173 ( 1987) Interest will be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amend ment to 26 U S C § 6621 r Any interest applicable to such delinquent payments shall be paid in accordance with the criteria set forth in Merryweather Optical Co 240 NLRB 1213 (1979) 8 See Adirondack Foundries 286 NLRB 263(1987) 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tributions to the appropriate fringe benefit funds on behalf of the unit employees and by failing and re fusing to file periodic fringe benefit reports with the Union (b) Refusing to provide the Union with informa tion necessary for collective bargaining (c) In any like or related manner interfering with restraining or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Give full force and effect to the wage and overtime provisions and the provisions for filing fringe benefit contributions and reports of the cur rent collective bargaining agreement (b) Make any bargaining unit employee adverse ly affected by the actions found unlawful in the de cision whole for any loss suffered as a result of such actions in the manner set forth in the remedy section of this decision (c) Make whole the unit employees by abiding by the collective bargaining agreement and by making delinquent fringe benefit contributions to the appropriate fringe benefit funds on behalf of the unit employees and by reimbursing them for any expenses ensuing from the Respondents un lawful failure to make such payments in the manner set forth in the remedy section of this deci lion (d) On request provide the Union with informa tion necessary for collective bargaining that was requested on June 22 1987 (e) Preserve and on request make available to agents of the National Labor Relations Board for examination and copying all records that are needed to analyze and determine the amounts of money due under the terms of the Board s Order (f) Post at its facility in Pevely Missouri copies of the attached notice marked Appendix 9 Copies of the notice on forms provided by the Re gional Director for Region 14 after being signed by the Respondents authorized representative shall be posted by the Respondent 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 Respondent to ensure that the notices are not altered defaced or covered by any other material 9 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 Nation at 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 (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps 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 ordered us to post and abide by this notice WE WILL NOT refuse to bargain with Local 36 Sheet Metal Workers International Association AFL-CIO as the exclusive representative of the employees in the bargaining unit by ceasing to abide by the collective bargaining agreement by failing and refusing to pay our unit employees the wage rates and overtime pay set forth in the agree ment by failing and refusing to make fringe benefit contributions to the appropriate fringe benefit funds on behalf of our employees in the unit and by failing and refusing to file periodic fringe bene fit reports with the Union WE WILL NOT fail to provide the Union with in formation necessary for collective bargaining WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL give full force and effect to the wage and overtime provisions of the current collective bargaining agreement WE WILL make any bargaining unit employees adversely affected by our violations of the Act whole for any loss of earnings WE WILL make whole our unit employees by paying all delinquent fringe benefit contributions required by our collective bargaining agreement with the Union and by reimbursing our unit em ployees for any expenses ensuing from the failure to make such payments WE WILL file with the Union the fringe benefit reports WE WILL on request furnish the above Union with the information it requested on June 22 1987 the information being relevant and necessary to its role as the exclusive bargaining representative of the employees in the bargaining unit CINDY AND HAROLD F FITZGERALD D/B/A A 1 WHOLESALE SEAMLESS GUTTERING