B. J. Tile

National Labor Relations Board - Board DecisionsJan 31, 1990

297 N.L.R.B. 624 (N.L.R.B. 1990)

624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Brad Jobe Enterprises, Inc. d/b/a B. J. Tile and Marble Masons, Terrazzo Workers & Tile Layers Subordinate Union No. 3 of Kansas City, Missouri of the Bricklayers Masons & Plasterers International Union of America. Case 17-CA-14540 January 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY Upon a charge filed by the Union July 11, 1989, the General Counsel of the National Labor Rela- tions Board issued a complaint against Brad Jobe Enterprises, Inc d/b/a B J Tile, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act Although properly served copies of the charge and com- plaint, the Respondent has failed to file an answer On November 1, 1989, the General Counsel filed a Motion for Summary Judgment On November 3, 1989, 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 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Ruling on Motion for 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 of 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 allegations in the Motion for Summary Judgment disclose that counsel for the General Counsel, by letter dated October 18, 1989, notified the Re- spondent that unless an answer was received by October 25, 1989, a Motion for Summary Judg- ment 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 fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a Missouri corporation, is en- gaged in the installation of tile as a contractor in the construction industry at its facility in Blue Springs, Missouri, where it annually purchased and received products, goods, and materials valued in excess of $50,000 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 The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act All full-time and regular part-time tile layers and apprentice tile layers employed by Brad Jobe Enterprises, Inc d/b/a B J Tile, within the counties of Bates, Benton, Camden, Car- roll, Cass, Chariton, Clay, Cooper, Henry, Hickory, Jackson, Johnson, Lafayette, Mom- teau, Morgan, Pettis, Platte, Ray, St Clair, and Saline in the State of Missouri, and John- son, Leavenworth and Wyandotte in the State of Kansas, EXCLUDING all office clerical employees, professional employees, guards, and supervisors as defined in the Act, and all other employees Since about May 30, 1985, and all times material, the Union, by virtue of Section 9(a) of the Act, has been and is the exclusive collective-bargaining rep- resentative of the unit and since about May 30, 1985, the Union has been recognized as such repre- sentative by the Respondent Such recognition has been embodied in successive collective-bargaining agreements between the Respondent and the Union, the most recent of which is effective by its terms for the period June 1, 1989, to May 31, 1992 Since about October 1, 1988, the Respondent has refused to comply with the terms of the parties' collective-bargaining agreement by failing to make payments to the Union's welfare fund, pension fund, and industry development fund The Re- spondent ceased making such payments without prior notice to the Union and without agreement of the Union as the exclusive representative of the Re- spondent's employees We find that the Respond- ent, by the conduct described above, has failed and refused to bargain collectively in good faith with 297 NLRB No 92 B J TILE 625 the representative of its employees in violation of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW , By refusing to abide by the terms and conditions of employment set forth in its collective-bargaining agreement with the Union by failing to make funds payments, the Respondent has 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, we shall order the Respondent to honor and abide by the terms of its collective-bar- gaining agreement with the Union and to make the unit employees whole for any losses they may have suffered because of the Respondent's failure to abide by the terms of the agreement, and to remit to the Union's funds the contributions required by the agreement for the period begmmng October 1, 1988 ' The Respondent shall also reimburse its em- ployees for any expenses ensuing from its failure to make contributions to the funds, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn 2 (1980), enfd mem 661 F 2d 940 (9th Or 1981), with interest to be computed in the manner pre- scnbed in New Horizons for the Retarded, 283 NLRB 1173 (1987) ORDER The National Labor Relations Board orders that the Respondent, Brad Jobe Enterprises, Inc d/b/a 'Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide for the addition of a fixed rate of interest on unlawfully withheld fund payments at the adjudicatory stage of a proceeding We leave to the compliance stage the question whether the Respondent must pay any additional amounts Into the benefit funds in order to satisfy our "make-whole" remedy Depending on the circumstances of each case, the additional amounts may be determined by reference to provisions in the documents governing the funds at Issue and, where there are no governing provisions, by evidence of any losses directly attributable to the unlawful withholding, which might include the loss of return on Investment of the portion of funds withheld, addi- tional administrative costs, etc, but not collateral losses Merryweather Optical Co , 240 NLRB 1213, 1216 fn 7(1979) It is not clear whether the Industry development fund referred to in the complaint is an industry advancement fund, which is a permissive, non- mandatory subject of bargaining If it is determined at the compliance stage of this proceeding that this is an industry advancement fund, the Respondent will not be required to make delinquent and future payments to the fund It is not an unfair labor practice for an employer to refuse to bargain Or to unilaterally make a change in a permissive, nonmandatory subject of bargaining See F M L Supply, 258 NLRB 604 fn 3 (1981), Finger Lakes Plumbing Co, 254 NLRB 1399 (1981) B J Tile, Blue Springs, Missouri, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Failing and refusing to make contributions to the Union's funds as required by its collective-bar- gaining agreement with the Union (b) 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) Honor and abide by the terms of its collec- tive-bargaining agreement with the Union (b) Make whole the the unit employees for any losses they may have suffered as a result of the Re- spondent's refusal to honor the terms of its collec- tive-bargaining agreement in the manner described in the remedy section of this Decision and Order (c) Make whole the Union's funds for any pay- ments the Respondent failed to make for the period beginning October 1, 1988, in the manner described in the remedy section of this Decision and Order (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of reimbursements due (e) Post at its Blue Springs, Missouri facility copies of the attached notice marked "Appendix "2 Copies of the notice, on forms provided by the Re- gional Director for Region 17, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in wnting within 20 days from the date of this Order what steps the Respondent has taken to comply 2 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- al 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" 626 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 ordered us to post and abide by this notice WE WILL NOT fall or refuse to make contribu- tions to the Union funds as required by our collec- tive-bargaining agreement with the Union 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 honor and abide by the terms of our collective-bargaining agreement with the Union WE WILL make whole the unit employees for any losses they may have suffered as a result of our refusal to honor the terms of our collective-bar- gaining agreement from October 1, 1988, with in- terest WE WILL make whole the Union's funds for any payments we failed to make from October 1, 1988 BRAD JOSE ENTERPRISES, INC D/B/A B J TILE