Deboise Contractors Co.

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 470 (N.L.R.B. 1992)

470
308 NLRB No. 70
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The associations are composed of various employers engaged in
the construction industry. One of the purposes of the associations is
to represent its employer-members in negotiating and administering
collective-bargaining agreements with various labor organizations,
including the Union.
2 The record does not contain a full description of the bargaining
unit. Rather, the unit is described only as including all employees
in the classifications set forth in the above-mentioned collective-bar-
gaining agreement, excluding all other employees, guards, and super-
visors as defined in the Act.
3 The commerce data in the complaint suggests that the Respond-
ent is a construction industry employer subject to the provisions of
Sec. 8(f) of the Act. However, we are unable to determine from the
complaint or from the documents submitted by the General Counsel
in support of the motion whether the bargaining relationship between
the Respondent and the Union was established pursuant to Sec. 8(f)
or pursuant to the Union’s showing of 9(a) majority support. Under
John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron
Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), a union sig-
natory to an 8(f) contract attains only limited 9(a) status confined
to the terms of the contract. The burden of showing that a bargaining
relationship between a union and a construction industry employer
Deboise Contractors Company, Inc. and Massachu-
setts Laborers’ Benefit Funds. Case 1–CA–
29236
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by Massachusetts Laborers’
Benefit Funds on March 26, 1992 (amended April 28,
1992), the General Counsel of the National Labor Re-
lations Board issued a complaint on May 8, 1992,
against Deboise Contractors Company, Inc., the Re-
spondent, alleging that it has engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1)
and Section 8(d) of the National Labor Relations Act.
Although properly served copies of the charge and
complaint, the Respondent has failed to file an answer.
On July 24, 1992, the General Counsel filed a Mo-
tion for Summary Judgment. On July 28, 1992, 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 re-
sponse. The allegations in the motion are therefore un-
disputed.
The National Labor Relations Board has delegated
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 Regulations
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 considered 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 by letter dated June 2, 1992,
the acting Regional attorney notified the Respondent
that unless an answer was received by the close of
business June 9, 1992, a Motion for Summary Judg-
ment would be filed. To date, no answer has been filed
by the Respondent.
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 corporation with an office and
place of business in Worcester, Massachusetts, has
been engaged as a road and site contractor in the con-
struction industry. During the calendar year ending De-
cember 31, 1991, a representative period, the Respond-
ent, in the course and conduct of its business oper-
ations, provided services valued in excess of $50,000
for B & W Contractors, an enterprise located within
the Commonwealth of Massachusetts which is directly
engaged in interstate commerce. We find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that the Massachusetts Laborers’ District Council of
the Laborers’ International Union of North America,
AFL–CIO (the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On October 14, 1981, the Respondent executed an
Acceptance of Agreement and Declaration of Trust
with the Union in which it agreed to be bound to a
collective-bargaining agreement between the Union
and two employer associations, the Associated General
Contractor of Massachusetts, Inc. and the Building
Trades Employers’ Association,1 which was effective
for the period June 1, 1981, through May 31, 1983,
and to any successor agreements. On or about June 1,
1991, the Union and the associations entered into a
collective-bargaining agreement which by its terms is
effective for the period June 1, 1991, through May 31,
1994.
Since on or about October 14, 1981, and at all mate-
rial times, the Union has been the limited exclusive
collective-bargaining representative of all the Respond-
ent’s employees in an appropriate unit2 and has, since
then, been recognized as such by the Respondent, such
recognition having been embodied in the above-men-
tioned Acceptance of Agreement and Declaration of
Trust.3 At all material times, the Union has been the
471DEBOISE CONTRACTORS CO.
is not an 8(f) relationship is on the party asserting 9(a) status.
Deklewa, supra at 1385 fn. 41. In the absence of an allegation that
the bargaining relationship was based on a showing of 9(a) support,
we find that the relationship was entered into pursuant to Sec. 8(f)
and that the Union is, therefore, the limited Sec. 9 representative of
the Respondent’s employees for the period covered by the contract.
4 All interest shall be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
5 Any additional amounts applicable to those payments shall be
computed in the manner prescribed in Merryweather Optical Co.,
240 NLRB 1213 (1979).
6 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
Continued
limited exclusive collective-bargaining representative
of the unit employees for the purposes of collective
bargaining over rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment,
pursuant to Section 9(a) of the Act.
Since about November 20, 1991, the Respondent has
failed to continue in effect all the terms and conditions
of the 1991–1994 agreement by failing to remit dues
to the Union pursuant to article VIII, and fringe benefit
amounts to the Health and Welfare Fund, Pension
Fund, Training Trust Fund, Legal Services Fund, and
Annuity Fund, as required under articles XI–XV of the
agreement, all of which are mandatory subjects of bar-
gaining. By engaging in such conduct without the
Union’s consent, the Respondent has failed, and is fail-
ing, to bargain in good faith with the Union within the
meaning of Section 8(d), and in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing to remit dues to the Union pursuant to ar-
ticle VIII of the 1991–1994 agreement, and failing to
make fringe benefit payments to the Health and Wel-
fare Fund, Pension Fund, Training Trust Fund, Legal
Services Fund, and Annuity Fund, as required by arti-
cles XI–XV of the agreement, the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1), 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.
We shall order the Respondent to comply with all
terms of its 1991–1994 agreement with the Union, and
to remit to the Union, with interest, all dues that have
not been forwarded since about November 20, 1991, as
required by article VIII of the 1991–1994 agreement,
and to make the fringe benefit payments to the Health
and Welfare Fund, Pension Fund, Training Trust Fund,
Legal Services Fund, and Annuity Fund that have not
been made since about the same date, as required by
articles XI–XV of the agreement.4 We shall also order
the Respondent to make its employees whole for any
losses attributable to its failure to make such fringe
benefit payments, with interest. Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661
F.2d 940 (9th Cir. 1981).5
ORDER
The National Labor Relations Board orders that the
Respondent, Deboise Contractors Company, Inc.,
Worcester, Massachusetts, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing to continue in effect all the terms and
conditions of its 1991–1994 collective-bargaining
agreement with Massachusetts Laborers’ District Coun-
cil of the Laborers’ International Union of North
America, AFL–CIO, which is the limited exclusive
collective-bargaining representative of all the Respond-
ent’s employees in the classifications set forth in that
agreement, excluding all other employees, guards, and
supervisors as defined in the Act, by failing to remit
dues to the Union and failing to make fringe benefit
payments to the Health and Welfare Fund, Pension
Fund, Training Trust Fund, Legal Services Fund, and
Annuity Fund.
(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) Remit to the Union all dues that have not been
forwarded since about November 20, 1991, as required
by article VIII of the parties’ 1991–1994 agreement,
with interest as set forth in the remedy section of this
decision.
(b) Remit the fringe benefit payments to the Health
and Welfare Fund, the Pension Fund, the Training
Trust Fund, the Legal Services Fund, and the Annuity
Fund that have not been made since about November
20, 1991, as required under articles XI–XV of the par-
ties’ 1991–1994 agreement, and make its employees
whole for any losses attributable to its failure to make
such payments in the manner set forth in the remedy
section of this decision.
(c) 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 amounts due under
the terms of this Order.
(d) Post at its facility in Worcester, Massachusetts,
copies of the attached notice marked ‘‘Appendix.’’6
472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by the
Respondent’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.
(e) 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 or-
dered us to post and abide by this notice.
WE WILL NOT fail to continue in effect all the terms
and conditions of our 1991–1994 collective-bargaining
agreement with Massachusetts Laborers’ District Coun-
cil of the Laborers’ International Union of North
America, AFL–CIO, which is the limited exclusive
collective-bargaining representative of all our employ-
ees in the classifications set forth in that agreement,
excluding all other employees, guards, and supervisors
as defined in the Act, by failing to remit dues to the
Union as required by article VIII of the agreement, and
failing to make fringe benefit payments to the Heath
and Welfare Fund, Pension Fund, Training Trust Fund,
Legal Sevices Fund, and Annuity Fund as required by
articles XI–XV of our 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 remit to the Union the dues that have not
been forwarded since about November 20, 1991, with
interest.
WE WILL make the fringe benefit payments to the
Health and Welfare Fund, Pension Fund, Training
Trust Fund, Legal Services Fund, and Annuity Fund
that have not been made since about November 20,
1991, and WE WILL make whole our employees for any
losses attributable to our failure to make such pay-
ments, with interest.
DEBOISE CONTRACTORS COMPANY, INC.