Ernie's Concrete Construction

National Labor Relations Board - Board Decisions

Sep 9, 1992

308 N.L.R.B. 740 (N.L.R.B. 1992)

740
308 NLRB No. 102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Copies of the charge and complaint that were sent to the Re-
spondent by certified mail were returned to the Regional Office
marked ‘‘unclaimed.’’ However, the Respondent’s failure or refusal
to claim certified mail cannot serve to defeat the purposes of the
Act. See, e.g., Michigan Expediting Service, 282 NLRB 210 fn. 6
(1986).
Ernie’s Concrete Construction, Inc. and Laborers’
Fringe Benefit Funds Joint Delinquency Com-
mittee. Case 7–CA–33323
September 9, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Upon a charge filed by Laborers’ Fringe Benefit
Funds Joint Delinquency Committee (the Delinquency
Committee), the General Counsel of the National
Labor Relations Board issued a complaint on June 26,
1992, against Ernie’s Concrete Construction, Inc., 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,1 the Respondent has failed to file an an-
swer.
On August 10, 1992, the General Counsel filed a
Motion for Summary Judgment. On August 12, 1992,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion 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
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 deemed to be admitted to be
true and may be so found by the Board.’’ Further, the
undisputed allegations in the Motion for Summary
Judgment disclose that the region, by letter dated July
16, 1992, notified the Respondent that unless an an-
swer was received by July 30, 1992, 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 corporation, with an office and
place of business in Detroit, Michigan, has been en-
gaged in the construction industry as a concrete con-
tractor. During the calendar year ending December 31,
1991, the Respondent provided services valued in ex-
cess of $50,000 to Turner Construction Company, an
enterprise within the State of Michigan. During the
same time period, Turner Construction Company sold
goods and/or performed services valued in excess of
$50,000 directly to customers located outside the State
of Michigan. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that each of
the State of Michigan Laborers’ District Council (the
District Council), Local 334 (Local 334) and Local
1076 (Local 1076) of the Laborers’ International
Union of North America, AFL–CIO (the Union) are
labor organizations within the meaning of Section 2(5)
of the Act.
The Associated General Contractors of America, De-
troit Chapters, Inc. (AGC) is an organization composed
of employers engaged in the construction industry and
exists, in whole or part, for the purpose of representing
its employer-members in negotiating and administering
collective-bargaining agreements with various labor or-
ganizations, including the District Council and Locals
334 and 1076.
II. ALLEGED UNFAIR LABOR PRACTICES
At all times since at least March 21, 1988, the Re-
spondent has executed Interim and Supplemental
Agreements with Local 1076 agreeing to be bound to
successive agreements between AGC, the District
Council, Local 334 and Local 1076, the most recent of
which is effective by its terms from June 1, 1991,
through May 31, 1992 (1991–1992 AGC agreement).
On May 28, 1991, the Respondent executed an Interim
and Supplemental Agreement with Local 1076 agree-
ing to abide by all the terms of the 1991–1992 AGC
agreement and binding it to the terms and conditions
of employment of the 1991–1992 AGC agreement. At
all times since at least March 21, 1988, the District
Council, Local 1076 has been the limited exclusive
collective-bargaining representative pursuant to Section
8(f) of the Act of the employees in the following unit
which is appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b):
All full-time and regular part-time laborers em-
ployed by the Respondent, but excluding guards
and supervisors as defined in the Act.
At all times material, the Delinquency Committee
has been designated to collect fringe benefit contribu-
741ERNIE’S CONCRETE CONSTRUCTION
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
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.’’
tions and to administer the fringe benefit funds of the
AGC agreements for certain fringe benefit contribu-
tions to be made to the Laborers’ Fringe Benefit Funds
by the Respondent on behalf of the unit employees.
By letter dated January 17, 1992, the Delinquency
Committee, on behalf of the Union, requested the Re-
spondent to make available for review its payroll
records, including employee earning records, Forms
W-2, W-3, 1099 and MESC Form 1017, for the period
January 1989 to date so that the Delinquency Commit-
tee could audit the Respondent’s compliance with the
fringe benefit contributions provisions of the AGC
agreements. The information requested is necessary for
and relevant to the Union’s performance of its function
as the collective-bargaining representative of the unit
employees. Since on or about January 17, 1992, and
continuing to date, the Respondent has failed and re-
fused to furnish the Delinquency Committee with the
information.
Since on or about November 1991, the Respondent
has unilaterally and without agreement with the Dis-
trict Council and Local 1076, failed and refused to
apply the terms of the 1991–1992 AGC agreement to
its unit employees by its failure to make all of the req-
uisite fringe benefit fund contributions on behalf of its
unit employees. These actions constitute unilateral
modification of the 1991–1992 AGC agreement, with-
out compliance with the provisions of Section 8(d) of
the Act.
CONCLUSION OF LAW
By its failure to provide information to the Delin-
quency Committee and its failure to apply all the terms
of the 1991–1992 AGC agreement by failure to make
contractually required fringe benefit payments, the Re-
spondent has engaged in unfair labor practices affect-
ing 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 to make
contractually required fringe benefit payments, we
shall order the Respondent to make whole its unit em-
ployees by making all payments that have not been
made 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 (1979). In addition, the Respondent shall reim-
burse 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), with
interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). We shall also order
the Respondent to furnish the requested information.
ORDER
The National Labor Relations Board orders that the
Respondent, Ernie’s Concrete Construction, Inc., De-
troit, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to honor the terms of its
1991–1992 AGC agreement by failing to make con-
tractually required fringe benefit payments.
(b) Failing to provide requested information to the
Delinquency Committee.
(c) In any like or related manner interfering with, re-
straining, 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 1991–1992 AGC agree-
ment by making contractually required fringe benefit
payments.
(b) Make whole unit employees for any loss of ben-
efits or other expenses suffered as a result of the Re-
spondent’s failure to make contractually required
fringe benefit contributions.
(c) Provide the Delinquency Committee, on behalf
of the Union, payroll records, including employee
earning records, Forms W-2, W-3, 1099 and MESC
Form 1017, for the period of January 1989 to date.
(d) 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.
(e) Post at its facility in Detroit, Michigan, copies of
the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 Re-
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) 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 refuse to bargain with the State of
Michigan Laborers’ District Council, Local 334 and
Local 1076 of the Laborers’ International Union of
North America, AFL–CIO, as the limited exclusive
bargaining representative of our employees in the fol-
lowing appropriate unit:
All full-time and regular part-time laborers, but
excluding guards and supervisors as defined in the
Act.
WE WILL NOT fail or refuse to honor all the terms
of our AGC agreement by failing to make contrac-
tually required fringe benefit payments.
WE WILL NOT refuse to supply the Laborers’ Fringe
Benefit Funds Joint Delinquency Committee, on behalf
of the Union, all the information that is necessary and
relevant to its role on behalf of the Union, the limited
exclusive bargaining representative of our unit employ-
ees.
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 all the terms and conditions of our
AGC contract by making all contractually required
fringe benefit contributions.
WE WILL make our unit employees whole for any
loss of benefits or other expenses suffered as a result
of our failure to make all contractually required fringe
benefit contributions.
WE WILL provide the Delinquency Committee pay-
roll records, including employee earning records,
Forms W-2, W-3, 1099, and MESC Form 1017, for the
period of January 1989 to date.
ERNIE’S CONCRETE CONSTRUCTION, INC.