A. S. B. Cloture, Ltd.

National Labor Relations Board - Board Decisions

Mar 31, 1994

313 N.L.R.B. 1012 (N.L.R.B. 1994)

1012
313 NLRB No. 176
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although copies of the complaint, sent by certified mail to the
Respondent, were returned marked ‘‘unclaimed’’ and ‘‘returned to
sender’’ by the Post Office, the Respondent’s failure or refusal to
claim certified mail or to provide for receiving appropriate service
cannot serve to defeat the purposes of the Act. See Michigan Expe-
diting Service, 282 NLRB 210 fn. 6 (1986); and Mondie Forge Co.,
309 NLRB No. 82 (not reported in Board volumes).
2 The complaint’s commerce data and unit description suggest that
the Respondent is a construction industry employer subject to the
provisions of Sec. 8(f) of the Act. Accordingly, in the absence of
an allegation that the bargaining relationship was actually based on
9(a) majority support, we find that the relationship was entered into
pursuant to Sec. 8(f), and that the Union is therefore the limited 9(a)
representative of the unit employees for the period covered by the
contract. See Electri-Tech, Inc., 306 NLRB 707 fn. 2 (1992) (citing
A. S. B. Cloture, Ltd. and Local Union No. 46,
Sheet Metal Workers International Association.
Case 3–CA–18217
March 31, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
Upon a charge filed by Local Union No. 46, Sheet
Metal Workers International Association (the Union)
on November 10, 1993, the Acting General Counsel of
the National Labor Relations Board issued a complaint
on December 21, 1993, against A. S. B. Cloture, Ltd.
(the Respondent) 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 failed to file an answer.
On February 14, 1994 the Acting General Counsel
filed a Motion for Summary Judgment with the Board.
On February 16, 1994, the Board issued an order trans-
ferring 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.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
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, un-
less 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 al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated January 13, 1994,
notified the Respondent that unless an answer were re-
ceived January 21, 1994, a Motion for Summary Judg-
ment would be filed. To date, no answer has been
filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the Acting
General Counsel’s Motion for Summary Judgment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a corporation
with an office and place of business in Rochester, New
York, has been engaged in the construction industry as
a sheet metal contractor specializing in heating and air
conditioning work. At all material times, Sheet Metal
Contractors of SMACNA-Rochester, Inc. (the Associa-
tion) has been an organization composed of various
employees engaged in the construction industry, one
purpose of which is to represent its employer-members
in negotiating and administering collective-bargaining
agreements with the Union. At all material times, the
Respondent has been an employer-member of the As-
sociation and has delegated the Association to rep-
resent it in negotiating and administering collective-
bargaining agreements with the Union.
Annually, the Respondent and the employer-mem-
bers of the aforementioned Association, in the course
of their business operations, collectively provided serv-
ices valued in excess of $50,000 for enterprises within
the State of New York which are directly engaged in
interstate commerce. 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
The employees of the Respondent, as more fully de-
scribed in article I, section 1, of the collective-bargain-
ing agreement between the Union and Sheet Metal
Contractors of SMACNA-Rochester effective by its
terms from May 1, 1993, to April 30, 1996, constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
Since about 1985 and at all material times, the
Union has been the designated limited exclusive col-
lective-bargaining representative of the unit, and since
then the Union has been recognized as the representa-
tive by the Respondent. This recognition has been em-
bodied in successive collective-bargaining agreements,
the most recent of which is effective from May 1,
1993, to April 30, 1996.
At all times since 1985, based on Section 9(a) of the
Act, the Union has been the limited exclusive collec-
tive-bargaining representative of the unit.2
1013A. S. B. CLOTURE, LTD.
John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron
Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988).
Member Browning finds it unnecessary to decide in this proceed-
ing whether the parties’ relationship is governed by Sec. 9 or by Sec.
8(f). She notes that in either event the Respondent was obligated to
adhere to the terms and conditions of the 1993–1996 collective-bar-
gaining agreement.
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.’’
About June 1993, the Respondent failed to continue
in effect all the terms and conditions of the agreement
described above by: (1) failing to make payments on
behalf of its unit employees to the Union’s Pension,
Health, and Annuity Fund and the Sheet Metal Work-
ers International Association National Pension Fund A;
and (2) failing to pay liquidated damages and interest
on delinquent contributions to the Union’s Pension,
Health, and Annuity Fund and the Sheet Metal Work-
ers International Association National Pension Fund A.
Although the terms and conditions of employment
described above are mandatory subjects for the pur-
pose of collective bargaining, the Respondent engaged
in the conduct without the Union’s consent.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively and in good faith with the limited exclusive
collective-bargaining representative of its employees,
and has thereby engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(1) and (5) and Section 8(d) 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. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing about June 1993 to
make contributions to the Union’s Pension, Health, and
Annuity Fund and the Sheet Metal Workers Inter-
national Association National Pension Fund A, and by
failing to pay liquidated damages and interest on delin-
quent contributions to the funds, as required by the
1993–1996 agreement, we shall order the Respondent
to honor the terms of the agreement and to make
whole its unit employees for its failure to do so by
paying all such delinquent contributions, liquidated
damages, and interest, including any additional
amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979). In addition, the Respondent shall reimburse
unit employees for any expenses ensuing from its fail-
ure to make the required contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, A. S. B. Cloture, Ltd., Rochester, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain collectively and in good faith
with Local Union No. 46, Sheet Metal Workers Inter-
national Association as the limited exclusive bargain-
ing representative of the employees described in article
I, section I of the 1993–1996 collective-bargaining
agreement, by failing to make payments to the Union’s
Pension, Health, and Annuity Fund and the Sheet
Metal Workers International Association National Pen-
sion Fund A and by failing to pay liquidated damages
and interest on delinquent contributions to the funds,
as required by the agreement.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Honor the terms of the 1993–1996 collective-bar-
gaining agreement, and make whole the unit employ-
ees for its failure to do so, as set forth in the remedy
section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its facility in Rochester, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’3 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 3, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
1014 DECISIONS 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
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 fail to bargain collectively and in
good faith with Local Union No. 46, Sheet Metal
Workers International Association as the limited exclu-
sive bargaining representative of the employees de-
scribed in article I, section 1 of our 1993–1996 collec-
tive-bargaining agreement with the Union, by failing to
make payments to the Union’s Pension, Health, and
Annuity Fund and the Sheet Metal Workers Inter-
national Association National Pension Fund A, and by
failing to pay liquidated damages and interest on delin-
quent contributions to those funds, as required by the
agreement.
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 the terms of the 1993–1996 collec-
tive-bargaining agreement, and WE WILL make whole
the unit employees for our failure to do so.
A. S. B. CLOTURE, LTD.