Custom Trim

National Labor Relations Board - Board Decisions

Aug 30, 1994

314 N.L.R.B. 940 (N.L.R.B. 1994)

940
314 NLRB No. 156
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of any need to determine in this proceeding
whether the parties’ relationship is governed by Sec. 9 or by Sec.
8(f), Member Browning would not reach that issue.
Gary Lee Nelson, Jr. and Donna Nelson, d/b/a Cus-
tom Trim and United Brotherhood of Car-
penters and Joiners of America, District Coun-
cil of Kansas City and Vicinity, AFL–CIO.
Case 17–CA–17347
August 30, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
Upon a charge filed by United Brotherhood of Car-
penters and Joiners of America, District Council of
Kansas City and Vicinity, AFL–CIO, on April 21,
1994, the General Counsel of the National Labor Rela-
tions Board issued a complaint on May 27, 1994,
against Gary Lee Nelson, Jr. and Donna Nelson, d/b/a
Custom Trim (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 August 1, 1994, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On Au-
gust 3, 1994, 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 Respond-
ent 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 July 5, 1994, no-
tified the Respondent that unless an answer were re-
ceived 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
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a partnership with an office and
place of business in Hendersonville, Tennessee, and
jobs in Kansas City, Missouri, has been a construction
contractor in the building and construction industry.
During the 12-month period ending October 31, 1993,
the Respondent has purchased and received at its facil-
ity in Tennessee, goods valued in excess of $50,000
directly from points outside the State of Tennessee.
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 organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all times material, the following employees of the
Respondent (the unit), constitute a unit appropriate for
the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
All employees employed by Respondent, includ-
ing all journeymen and apprentice carpenters,
lathers, millwrights and pile drivers, who perform
work which has historically and traditionally been
performed heretofore by members of the United
Brotherhood of Carpenters and Joiners of Amer-
ica, AFL–CIO (to include work previously per-
formed by Lathers) in the geographical area
which extends to and includes the counties: Jack-
son, Clay, Platte, Lafayette, Ray, Carroll, Saline,
Bates, Johnson, Cass, Harrison, Mercer, Grundy,
Daviess, Caldwell, Livingston, Henry, St. Clair,
Hickory, Camden, Laclede and Vernon in Mis-
souri, and Wyandotte, Johnson, Miami, Linn and
Leavenworth in Kansas, excluding all office cler-
ical employees, guards and supervisors as defined
in the Act and all other employees.
About October 27, 1993, the Respondent entered
into a contract stipulation, effective October 5, 1993,
whereby it agreed to be bound by the terms and condi-
tions of employment in the collective-bargaining agree-
ment (the agreement), between the Union and the
Builders Association of Missouri, which agreement is
effective from May 1, 1993 until March 31, 1996, and
agreed to be bound to such future agreements unless
timely notice was given.
The Respondent, an employer engaged in the build-
ing and construction industry, granted recognition to
the Union as the exclusive collective-bargaining rep-
resentative of the unit without regard to whether the
majority status of the Union had even been established
under the provisions of Section 9(a) of the Act. For the
period from October 5, 1993 to March 31, 1996, based
on Section 9(a) of the Act, the Union has been the
limited exclusive collective-bargaining representative
of the unit.1
941CUSTOM TRIM
2 Industry promotion and education funds are generally permissive
subjects of bargaining for which no remedy would normally be war-
ranted in this proceeding. See Finger Lakes Plumbing & Heating
Co., 254 NLRB 1399 (1981), and cases cited there. However, as the
record here fails to indicate the purposes of the industry advance-
ment and educational fund, we shall leave this issue to compliance.
See Advanced Mechanical Corp., 313 NLRB 629 (1994); and
Harabedian Paving Co., 313 NLRB 1079 (1994). See also South-
western Steel & Supply, 276 NLRB 1569, 1573–1574 fn. 9–10
(1985).
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.’’
Since on or about October 21, 1993, the Respondent
has failed to continue in effect all the terms and condi-
tions of the agreement described above, by failing to
make payments to the health and welfare fund, pension
fund, and industry advancement and educational fund
for its unit employees.
The Respondent engaged in the conduct described
above without the Union’s consent. The terms and
conditions of employment described above are manda-
tory subjects for the purposes of collective bargaining.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has failed and refused to bargain collectively
with the limited exclusive collective-bargaining rep-
resentative of its employees, and has thereby 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 de-
signed to effectuate the policies of the Act.
Specifically, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing since Octo-
ber 21, 1993, to make contractually required payments
to various benefit funds, we shall order the Respondent
to make whole its unit employees by making all pay-
ments that have not been made since October 21,
1993, and that would have been made but for the Re-
spondent’s unlawful failure to make them, including
any additional amounts applicable to such delinquent
payments as determined in accordance with the criteria
set forth in Merryweather Optical Co., 240 NLRB
1213, 1216 (1979). In addition, the Respondent shall
reimburse unit employees for any expenses ensuing
from its failure to make such required payments, as set
forth in Kraft Plumbing & Heating, 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, 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).2
ORDER
The National Labor Relations Board orders that the
Respondent, Gary Lee Nelson, Jr. and Donna Nelson,
d/b/a Custom Trim, Hendersonville, Tennessee, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the United
Brotherhood of Carpenters and Joiners of America,
District Council of Kansas City and Vicinity, AFL–
CIO, as the limited exclusive bargaining representative
of the employees in the following unit by failing to
make contractually required contributions to fringe
benefit funds on behalf of unit employees:
All employees employed by Respondent, includ-
ing all journeymen and apprentice carpenters,
lathers, millwrights and pile drivers, who perform
work which has historically and traditionally been
performed heretofore by members of the United
Brotherhood of Carpenters and Joiners of Amer-
ica, AFL–CIO, (to include work previously per-
formed by Lathers) in the geographical area
which extends to and includes the counties: Jack-
son, Clay, Platte, Lafayette, Ray, Carroll, Saline,
Bates, Johnson, Cass, Harrison, Mercer, Grundy,
Daviess, Caldwell, Livingston, Henry, St. Clair,
Hickory, Camden, Laclede and Vernon in Mis-
souri, and Wyandotte, Johnson, Miami, Linn and
Leavenworth in Kansas, excluding all office cler-
ical employees, guards and supervisors as defined
in the Act and all other employees.
(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) Make all required contributions to the various
fringe benefit funds on behalf of the unit employees,
and make the unit employees whole for any loss of
benefits or expenses resulting from its unlawful failure
to do so since October 21, 1993, 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 Hendersonville, Tennessee,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Acting
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regional Director for Region 17, after being signed by
the Respondent’s 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.
(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.
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 fail and refuse to bargain with the
United Brotherhood of Carpenters and Joiners of
America, District Council of Kansas City and Vicinity,
AFL–CIO, as the limited exclusive bargaining rep-
resentative of the employees in the following unit by
failing to make contractually required contributions to
the fringe benefit funds on behalf of unit employees:
All employees employed by us, including all jour-
neymen and apprentice carpenters, lathers, mill-
wrights and pile drivers, who perform work which
has historically and traditionally been performed
heretofore by members of the United Brotherhood
of Carpenters and Joiners of America, AFL–CIO,
(to include work previously performed by Lath-
ers) in the geographical area which extends to and
includes the counties: Jackson, Clay, Platte, La-
fayette, Ray, Carroll, Saline, Bates, Johnson, Cass,
Harrison, Mercer, Grundy, Daviess, Caldwell,
Livingston, Henry, St. Clair, Hickory, Camden,
Laclede and Vernon in Missouri, and Wyandotte,
Johnson, Miami, Linn and Leavenworth in Kan-
sas, excluding all office clerical employees,
guards and supervisors as defined in the Act and
all other employees.
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 make all required contributions to fringe
benefit funds on behalf of the unit employees, and WE
WILL make them whole for any loss of benefits or ex-
penses resulting from our unlawful failure to do so
since October 21, 1993.
GARY LEE NELSON, JR. AND DONNA
NELSON, D/B/A CUSTOM TRIM