Laborers Local 334 (Burdco Environmental)

National Labor Relations Board - Board Decisions

Jun 12, 1991

303 N.L.R.B. 350 (N.L.R.B. 1991)

350
303 NLRB No. 48
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Art. II, sec. 1, provides in pertinent part:
Each employee, as a condition of employment thereafter, shall become
and remain a member of the Union in good standing by tendering his ini-
tiation fee and periodic dues or working dues for the term of his employ-
ment on and after the 8th (eighth) calendar day, beginning with the first
Laborers’ Local Union #334, Laborers’ Inter-
national Union of North America, AFL–CIO
(Burdco Environmental, Inc.) and Gregory
Zalucki. Case 7–CB–8504
June 12, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Upon a charge filed by Gregory Zalucki, the Charg-
ing Party, on October 12, 1990, the General Counsel
of the National Labor Relations Board issued a com-
plaint on November 29, 1990, against the Union, the
Respondent, alleging that it has violated Section
8(b)(1)(A) and (2) of the National Labor Relations
Act. Although properly served copies of the charge
and complaint, the Respondent has failed to file a
timely answer.
On February 8, 1991, the General Counsel filed a
Motion for Summary Judgment, with exhibits attached.
On February 12, 1991, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted.
On February 26, 1991, the Board received a reply to
the Motion for Summary Judgment and an answer to
the complaint.
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 so admitted
true and may be so found by the Board.’’ Further, the
undisputed allegations in the Motion for Summary
Judgment disclose that the Regional attorney for Re-
gion 7, by certified letter dated December 18, 1990,
notified the Respondent that unless an answer was re-
ceived by January 2, 1991, a Motion for Summary
Judgment would be filed.
In its reply to the General Counsel’s Motion for
Summary Judgment, the Respondent contends that its
failure to file a timely answer was because (1) the
agents and officers set forth in the complaint were
elected and/or appointed to their positions for the first
time in June 1990; (2) these agents and officers were
not familiar with the rules and regulations of the Board
and had never been confronted with a formal com-
plaint filed by the General Counsel; and (3) they were
informed and believed that, to contest the allegations
set forth in the complaint, they only needed to be
present on the day of the hearing. As indicated above,
however, it is undisputed that the Respondent was
served a copy of the complaint which stated the need
to file an answer and that all allegations in the com-
plaint might be deemed admitted unless an answer
were filed. Further, the Regional attorney, in his De-
cember 18, 1990 letter to the Respondent, explained
that if no answer were received by January 2, 1991,
a Motion for Summary Judgment would be filed. The
Respondent did not offer any explanation for its failure
to act until about 8 weeks after the extended deadline.
Under these circumstances, we find that the Respond-
ent has not shown good cause for its failure to file a
timely answer, and we, therefore, reject the Respond-
ent’s untimely February 26, 1991 answer.
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 Employer, Burdco Environmental, Inc., a
Michigan corporation, maintains its principal office
and place of business in Traverse City, Michigan,
where it provides asbestos removal and abatement
services. During the year ending December 3, 1989, a
representative period, the Employer, in the course and
conduct of its business operations, purchased and
caused to be transported and delivered at its various
Michigan jobsites goods and materials valued in excess
of $75,000, of which goods and materials valued in ex-
cess of $50,000 were transported and delivered to its
various jobsites in Michigan, directly from points lo-
cated outside the State of Michigan. We find that the
Employer is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that the Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since about October 1, 1990, Burdco Environmental,
Inc. and the Respondent have been signatories to a col-
lective-bargaining agreement in which they agreed to
be bound by all the terms and conditions of the collec-
tive-bargaining agreement between the Asbestos and
Lead Paint Abatement Contractors Association and the
State of Michigan Laborers’ International Union of
North America. This collective-bargaining agreement
contains a union-security clause.1
351LABORERS LOCAL 334 (BURDCO ENVIRONMENTAL)
day of his employment by any Employer covered by this Agreement, or
on and after the 8th (eighth) calendar day following the effective date of
this Agreement, whichever is the latter [sic].
2 The Board has long held that a union seeking the discharge of an em-
ployee for failing to pay dues must first provide that employee with a state-
ment of the precise amount owed, the method by which that amount was com-
puted, and an opportunity to make payment. Philadelphia Sheraton Corp., 136
NLRB 888 (1962), enfd. sub nom. NLRB v. Hotel Employees Local 568, 320
F.2d 254 (3d Cir. 1963).
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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
About October 10, 1990, the Respondent, by its
agent Ronald C. Allen, in accordance with the union-
security agreement, caused the layoff of Gregory
Zalucki from the Employer’s Roseville jobsite for fail-
ure to tender periodic dues payments and/or failure to
show proof of such payments. Prior to requesting the
layoff, the Respondent failed to notify Zalucki of the
precise amount and months for which dues were owed
and when they were to be paid. The Respondent also
failed to warn Zalucki that his discharge was immi-
nent. By arbitrarily depriving Zalucki of an adequate
opportunity to undertake the action necessary to pro-
tect and retain his employment, the Respondent
breached its fiduciary duty.2 We find that the Respond-
ent thereby violated Section 8(b)(1)(A) and (2) of the
Act.
CONCLUSION OF LAW
By causing or attempting to cause Burdco Environ-
mental, Inc. to lay off Gregory Zalucki for his failure
to tender periodic dues payments and/or his failure to
show proof of such payments, without first advising
him of his obligation to do so and providing him an
adequate opportunity to undertake the action necessary
to protect and retain his employment, the Respondent,
Laborers’ Local Union #334, Laborers International
Union of North America, AFL–CIO, has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(b)(1)(A) and (2) 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.
Having found that the Respondent unlawfully caused
the layoff of Gregory Zalucki, we shall order it (1) to
notify the Employer that it has no objection to the re-
employment of Gregory Zalucki; (2) to seek Gregory
Zalucki’s reinstatement with the Employer; and (3) to
make Gregory Zalucki whole, with interest, for any
loss of earnings and other benefits he may have suf-
fered by reason of the discrimination against him from
the date of his layoff until he is reinstated to his
former or substantially equivalent position or he ob-
tains substantially equivalent employment. Loss of
earnings shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950). Interest
shall be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
The Union shall also be ordered to remove from its
files any reference to Zalucki’s unlawful layoff and
shall be required to notify Zalucki, in writing, of its
actions and inform him that his unlawful layoff shall
not be used as a basis for future action against him.
Further, the Union shall be required to ask the Em-
ployer, Burdco Environmental, Inc., to remove from its
files any reference to Zalucki’s layoff and shall notify
Zalucki that it has asked his Employer to do so. R. H.
Macy & Co., 266 NLRB 858 (1983).
ORDER
The National Labor Relations Board orders that the
Respondent, Laborers’ Local Union #334, Laborers
International Union of North America, AFL–CIO, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Burdco Environ-
mental, Inc. to discharge or otherwise discriminate
against Gregory Zalucki or any other employee for
failure to tender to the Respondent periodic dues, with-
out adequately advising him of his obligation.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify the Employer that it has no objection to
the reemployment of Gregory Zalucki and seek Greg-
ory Zalucki’s reinstatement with Burdco Environ-
mental, Inc.
(b) Make Gregory Zalucki whole, with interest, for
any loss of earnings and other benefits he may have
incurred as a result of the discrimination against him.
Backpay shall be computed in the manner prescribed
in the remedy section of this decision.
(c) Remove from its files, and ask the Employer to
remove from its files, any reference to Gregory
Zalucki’s unlawful layoff and notify him, in writing,
that this has been done and that evidence of this action
shall not be used as a basis for future action against
him.
(d) Post at its facility in Detroit, Michigan, copies
of the attached notice marked ‘‘Appendix.’’3 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 members are customarily
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
(e) Forward a sufficient number of signed copies of
the notice to the Regional Director for Region 7 for
posting by Burdco Environmental, Inc. at its place of
business in Traverse City, Michigan, in places where
notices to employees are customarily posted, if the
Employer is willing to do so.
(f) 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.
(g) 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 MEMBERS
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 cause or attempt to cause Burdco En-
vironmental, Inc. to discharge or otherwise discrimi-
nate against Gregory Zalucki or any other employee
for failure to tender periodic dues without adequately
advising him of his obligation.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment.
WE WILL notify Burdco Environmental, Inc. that we
have no objection to the reemployment of Gregory
Zalucki and WE WILL seek his reinstatement with the
Employer.
WE WILL make Gregory Zalucki whole, with inter-
est, for any loss of earnings and other benefits he may
have incurred by reason of our discrimination against
him.
WE WILL remove from our files and WE WILL ask
the Employer to remove from its files any reference to
Gregory Zalucki’s layoff and WE WILL notify him, in
writing, that this has been done and that evidence of
this action shall not be used as a basis for future action
against him.
LABORERS’ LOCAL UNION #334, LA-
BORERS’ INTERNATIONAL UNION OF
NORTH AMERICA, AFL–CIO