KD Christian Construction Co.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 1019 (N.L.R.B. 1993)

1019
312 NLRB No. 152
KD CHRISTIAN CONSTRUCTION CO.
1 Thus, we find that a relationship under Sec. 8(f) of the Act was
established between the Respondent and the Union. However, the
complaint in par. 5(d) alleges, and the Respondent admits, that ‘‘for
the period August 20, 1990 to March 31, 1993, based on Section
Continued
KD Christian Construction Company, Inc. and Car-
penters District Council of Kansas City & Vi-
cinity. Case 17–CA–16761
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon a charge filed by the Union on May 26, 1993,
the General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on July
8, 1993, against KD Christian Construction Company,
Inc., the Respondent, alleging that it has violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations
Act. Copies of the charge and complaint were duly
served on the Respondent.
The complaint alleges in substance that the Re-
spondent has failed and refused to continue in effect
all the terms of its collective-bargaining agreement
with the Union. The Respondent timely filed an an-
swer to the complaint admitting the factual allegations
of the complaint, but denying that it committed any
unfair labor practices.
On August 31, 1993, the General Counsel filed a
motion to transfer proceeding to the Board and for
Summary Judgment. The General Counsel’s motion ar-
gues that, because all the factual allegations of the
complaint have been admitted and the Respondent has
raised no valid defense, the Motion for Summary Judg-
ment must be granted.
On September 3, 1993, 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.
Ruling on Motion for Summary Judgment
The Respondent admits the operative facts giving
rise to the unfair labor practices alleged in the com-
plaint, but denies the conclusionary unfair labor prac-
tice allegations, without explanation.
Because the operative facts are admitted, we find
that the Respondent’s bare denials are insufficient to
refute the allegations of violations and that no material
factual issues have been raised. Accordingly, we find
all the factual allegations of the complaint to be true.
The Respondent has filed no response to the Notice to
Show Cause. Therefore, we grant the Motion for Sum-
mary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with an office and
place of business in Kansas City, Missouri, where it is
engaged as a contractor in the construction industry.
During the 12-month period ending June 30, 1993, the
Respondent, in the course and conduct of its business,
performed services valued in excess of $50,000 for
various enterprises within the State of Missouri which
are directly engaged in interstate commerce. The Re-
spondent admits, and we find, that it 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 meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Representative Status of the Union
The Respondent admits, and we find, that the fol-
lowing employees of the Respondent constitute a unit
appropriate for collective bargaining within the mean-
ing of Section 9(b) of the Act:
Employees who perform work which has histori-
cally and traditionally been performed heretofore
by members of the United Brotherhood of Car-
penters and Joiners of America, AFL–CIO (to in-
clude work previously performed by Lathers) in
the following 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.
The complaint in paragraph 5(b) alleges, and the Re-
spondent admits, that about March 27, 1990, as an em-
ployer engaged in the building and construction indus-
try, it granted recognition to the Union as the exclusive
collective-bargaining representative of the unit employ-
ees by assigning its bargaining rights to the Builders’
Association of Missouri (BAM), thereby admittedly
becoming bound to a collective-bargaining agreement
between BAM and the Union, effective from August
20, 1990, until March 31, 1993, without regard to
whether the majority status of the Union has been es-
tablished under the provisions of Section 9 of the Act.1
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9(a) of the Act, the Union has been the exclusive collective-bargain-
ing representative of the Unit.’’ To the extent that conclusionary par.
5(d) arguably alleges that the Union acquired full 9(a) status, par.
5(d) is inconsistent with the more specific par. 5(b). It appears,
based on the Respondent’s becoming bound to the collective-bar-
gaining agreement between BAM and the Union, that a relationship
under Sec. 8(f) of the Act was established between the Respondent
and the Union. Under the principles announced in John Deklewa &
Sons, 282 NLRB 1375 (1987), enfd. 843 F.2d 770 (3d Cir. 1988),
an 8(f) signatory union does not acquire full 9(a) status based solely
on the employer’s adoption of an 8(f) agreement. Accordingly, we
find that the Union is the limited exclusive representative of the em-
ployees in the unit. Id. at 1386–1387.
2 Because the provisions of employee benefit fund agreements are
variable and complex, 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.
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
B. Refusal to Comply with the Contract
The Respondent admits that since about December
1992 it has failed and refused to continue in effect all
the terms and conditions of its collective-bargaining
agreement with the Union by ceasing to deduct supple-
mentary dues pursuant to valid dues-checkoff author-
izations and by failing to remit the supplementary dues
to the Union; and by failing to make payments to the
health and welfare fund, pension fund, and apprentice-
ship educational fund on the behalf of unit employees.
The contractual provisions with which the Respondent
failed to comply relate to wages, hours, and other
terms and conditions of employment in the unit and
are mandatory subjects for purposes of collective bar-
gaining. We find that the Respondent has failed and
refused to bargain collectively with the representative
of its employees, in violation of Section 8(a)(5) and
(1) of the Act.
CONCLUSION OF LAW
By failing and refusing since December 1992 to de-
duct dues and to remit them to the Union, and to make
fringe benefit fund contributions on behalf of its unit
employees, as required by its collective-bargaining
agreement with the Union, the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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 make whole its
unit employees by making all unpaid fringe benefit
contributions since December 1992 to the various
funds as provided by the August 20, 1990–March 31,
1993, collective-bargaining agreement with the Union,2
and by reimbursing employees for any expenses ensu-
ing from the Respondent’s failure to make such con-
tributions, as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981). We also shall order the Respondent to
remit to the Union all union dues since December
1992 as required by its collective-bargaining agreement
with the Union. All payments to the Union and the
employees shall be made with interest to be computed
in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, KD Christian Construction Company,
Inc., Kansas City Missouri, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Carpenters
District Council of Kansas City & Vicinity, as the lim-
ited exclusive representative of the employees in the
appropriate unit described below, by failing and refus-
ing since December 1992 to make contributions to
fringe benefit funds, including the health and welfare
fund, pension fund, and apprenticeship educational
fund, and by failing and refusing since December 1992
to remit union dues to the Union as required by the
August 20, 1990–March 31, 1993 collective-bargaining
agreement with the Union,. The unit is:
Employees who perform work which has histori-
cally and traditionally been performed heretofore
by members of the United Brotherhood of Car-
penters and Joiners of America, AFL–CIO (to in-
clude work previously performed by Lathers) in
the following 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.
(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) Comply with the terms of the August 20, 1990–
March 31, 1993 collective-bargaining agreement with
the Union through its expiration.
(b) Make whole the unit employees by making con-
tributions to the fringe benefit funds as required since
December 1992 by the August 20, 1990–March 31,
1993 collective-bargaining agreement with the Union,
and by reimbursing, with interest, the unit employees
for any expenses ensuing from the failure to make
such contributions, in the manner set forth in the rem-
edy section of this decision.
1021KD CHRISTIAN CONSTRUCTION CO.
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.’’
(c) Remit to the Union dues as required since De-
cember 1992 by the August 20, 1990–March 31, 1993
collective-bargaining agreement with the Union, with
interest, in the manner set forth in the remedy section
of this decision.
(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 amount of reimburse-
ments due.
(e) Post at its Kansas City, Missouri, facility copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 17, 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-
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 collectively with
Carpenters District Council of Kansas City and Vicin-
ity as the limited exclusive bargaining representative of
our employees in the appropriate unit set out below, by
failing and refusing to make contributions to fringe
benefit funds, including the health and welfare fund,
pension fund, and apprenticeship educational fund, and
by failing and refusing to remit union dues to the
Union, all as required by our August 20, 1990–March
31, 1993 collective-bargaining agreement with the
Union. The unit is:
Employees who perform work which has histori-
cally and traditionally been performed heretofore
by members of the United Brotherhood of Car-
penters and Joiners of America, AFL–CIO (to in-
clude work previously performed by Lathers) in
the following 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.
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 comply with the terms of our collective-
bargaining agreement with the Union through its expi-
ration date.
WE WILL make whole our employees in the unit set
out above by making contributions to the fringe benefit
funds since December 1992 as required by our August
20, 1990–March 31, 1993 collective-bargaining agree-
ment with the Union, and WE WILL reimburse, with in-
terest, the unit employees for any expenses ensuing
from our failure to make such contributions.
WE WILL remit to the Union dues as required since
December 1992 by our collective-bargaining agreement
with the Union, with interest.
KD CHRISTIAN CONSTRUCTION COM-
PANY, INC.