Malik Roofing Corp.

National Labor Relations Board - Board Decisions

Jun 21, 2002

337 N.L.R.B. 103 (N.L.R.B. 2002)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Malik Roofing Corporation and Sheet Metal Workers
International Association, Local No. 18. Case
30–CA–15752–1
June 21, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND BARTLETT
The General Counsel in this case seeks summary
judgment on the ground that the Respondent has failed to
file an answer to the complaint. Upon a charge filed by
Sheet Metal Workers International Association, Local
No. 18, the Union, on November 20, 2001, the General
Counsel issued the complaint on January 31, 2002,
against Malik Roofing Corporation, the Respondent.
The complaint alleges that the Respondent has violated
Section 8(a)(1) and (5) of the Act. The Respondent
failed to file an answer.
On March 20, 2002, the General Counsel filed a Mo­
tion for Summary Judgment with the Board. On March
22, 2002, the Board issued an order transferring the pro­
ceeding 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.
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, unless 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 allegations in the Mo­
tion for Summary Judgment disclose that the Region, by
letter dated February 21, 2002, notified the Respondent
that unless an answer was received by March 1, 2002, a
Motion for Summary Judgment would be filed.
In the absence of good cause being shown for the fail­
ure to file a timely answer, we grant the General Coun­
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the business of manufacturing, dis­
tributing, and installing roofing systems out of its
Whitewater, Wisconsin facility. During the past calendar
year, the Respondent, in conducting its operations, pur­
chased and received products, goods, and materials val­
ued in excess of $50,000 directly from suppliers located
outside the State of Wisconsin.
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 organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain­
ing within the meaning of Section 9(b) of the Act:
[A]ll employees of the Employer engaged in but not
limited to the (a) manufacture, fabrication, assembling,
handling, erection, installation, dismantling, condition­
ing, adjustment, alteration, repairing and servicing of
all ferrous or nonferrous metal work and all other mate-
rials used in lieu thereof and of all air-veyor systems
and air handling systems regardless of material used in­
cluding the setting of all equipment and all reinforce­
ments in connection therewith; (b) all lagging over in­
sulation and all duct lining; (c) testing and balancing of
all air-handling equipment and duct work; (d) the
preparation of all shop and field sketches used in fabri­
cation and erection, including those taken from original
architectural and engineering drawings or sketches; and
(e) all other work included in the jurisdictional claims
of Sheet Metal Workers’ International Association.
At all material times, the Union has been the designated
exclusive collective-bargaining representative of the unit.
On May 17, 2000, the Respondent and the Union
signed an Assumption of Agreement. By entering into
the Assumption of Agreement, the Respondent agreed to
be bound by all the terms and conditions of the Union’s
collective-bargaining agreement with Southeastern Sheet
Metal Contractors Association, Inc., the Association,
effective from September 1, 1998, through August 31,
2001.
On May 31, 2000, the Respondent and the Union
signed a Letter of Assent, by which the Respondent rec­
ognized the Union as the representative of the unit. The
Respondent also agreed in the Letter of Assent to be
bound to any successor agreement to the 1998–2001 col­
lective-bargaining agreement between the Union and the
Association.
At all times since May 31, 2000, the Union, by virtue
of Section 9(a) of the Act, has been the exclusive collec­
tive-bargaining representative of the unit employees for
purposes of collective bargaining with respect to wages,
hours, and other terms and conditions of employment.
Since about October 2000, and particularly since about
May 20, 2001, and continuing to date, the Respondent
has failed and refused to pay the contributions required
by the terms and conditions of the 1998–2001 collective-
337 NLRB No. 103
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining agreement between the Union and the
Association. The Respondent engaged in this conduct
without prior notice to the Union, without affording the
Union an opportunity to bargain over this conduct, and
without the consent of the Union.
By letter dated August 3, 2001, the Respondent repu­
diated its agreement to be bound by the terms and condi­
tions of the 1998–2001 collective-bargaining agreement
between the Union and the Association, and its succes­
sors, and withdrew recognition of the Union as the exclu­
sive collective-bargaining representative of the unit, ef­
fective August 31, 2001.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon­
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of the employees in the unit,
and has thereby engaged in unfair labor practices affect­
ing commerce within the meaning of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer­
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, we shall
order the Respondent to recognize and, on request, bar-
gain with the Union as the exclusive collective-
bargaining representative of the unit employees; to com­
ply with the Assumption of Agreement, the Letter of
Assent, and the terms and conditions of the 1998–2001
agreement between the Union and the Association; and
to make whole the unit employees for any loss of wages
or earnings they may have suffered as a result of the Re­
spondent’s failure to abide by these agreements since
August 3, 2001. In addition, we shall order the Respon­
dent to make whole the unit employees by making all
contractually required contributions that have not been
made since October 2000, including any additional
amounts applicable to such delinquent payments in ac­
cordance with Merryweather Optical Co., 240 NLRB
1213, 1216 (1979).1 Further, the Respondent shall reim­
burse the unit employees for any expenses ensuing from
its failure to make the required contributions since Octo­
ber 2000, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981). All payments to unit employees shall be
computed in the manner set forth in Ogle Protection Ser­
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
1971), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Malik Roofing Corporation, Whitewater,
Wisconsin, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain
collectively and in good faith with Sheet Metal Workers
International Association, Local No. 18, as the exclusive
collective-bargaining representative of the employees in
the following unit:
[A]ll employees of the Emp loyer engaged in but not
limited to the (a) manufacture, fabrication, assembling,
handling, erection, installation, dismantling, condition­
ing, adjustment, alteration, repairing, and servicing of
all ferrous or nonferrous metal work and all other mate-
rials used in lieu thereof and of all air-veyor systems
and air handling systems regardless of material used in­
cluding the setting of all equipment and all reinforce­
ments in connection therewith; (b) all lagging over in­
sulation and all duct lining; (c) testing and balancing of
all air-handling equipment and duct work; (d) the
preparation of all shop and field sketches used in fabri­
cation and erection, including those taken from original
architectural and engineering drawings or sketches; and
(e) all other work included in the jurisdictional claims
of Sheet Metal Workers’ International Association.
(b) Failing and refusing to comply with the Assump­
tion of Agreement, the Letter of Assent, and the terms
and conditions of the 1998–2001 collective-bargaining
agreement between the Union and Southeastern Sheet
Metal Contractors Association, Inc., and failing to make
contractually required contributions for unit employees.
(c) Impermissibly repudiating its agreement to abide
by the terms and conditions of the Union’s 1998–2001
collective-bargaining agreement with Southeastern Sheet
Metal Contractors Association, Inc., and impermissibly
withdrawing recognition of the Union as the exclusive
collective-bargaining representative of the unit.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exe rcise 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) Recognize and, on request, bargain collectively and
in good faith with the Union as the exclusive collective-
bargaining representative of the employees in the unit set
forth above.
(b) Comply with the Assumption of Agreement, the
Letter of Assent, and the terms and conditions of the
1998–2001 collective-bargaining agreement between the
Union and Southeastern Sheet Metal Contractors Asso-
MALIK ROOFING CORP. 3
ciation, Inc., and make whole the unit employees for any
loss of wages and other benefits they may have suffered
as a result of its failure to abide by these agreements
since August 3, 2001, with interest as prescribed in the
remedy section of this decision.
(c) Make all contributions required by the terms and
conditions of the 1998–2001 collective-bargaining
agreement between the Union and Southeastern Sheet
Metal Contractors Association, Inc., and make whole the
unit employees by making all contractually required con­
tributions that have not been made since October 2000,
including any additional amounts applicable to such de­
linquent payments, and by reimbursing the unit employ­
ees for any expenses incurred as a result of its failure to
make contributions since October 2000, with interest as
described in the remedy section of this decision.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec­
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Whitewater, Wisconsin, copies of the at­
tached notice marked “Appendix.”2 Copies of the notice,
on forms provided by the Regional Director for Region
30, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al­
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil­
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no­
tice to all current employees and former employees em­
ployed by the Respondent at any time since October
2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Dated, Washington, D.C. June 21, 2002
Peter J. Hurtgen, Chairman
Wilma B. Liebman, Member
Michael J. Bartlett, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States
The National Labor Relations Board had found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your be-

half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi­
ties.
WE WILL NOT fail and refuse to recognize and bargain
collectively and in good faith with Sheet Metal Workers
International Association, Local No. 18, as the exclusive
collective-bargaining representative of the employees in
the following unit:
[A]ll employees of the Employers engaged in but not
limited to the (a) manufacture, fabrication, assembling,
handling, erection, installation, dismantling, condition­
ing, adjustment, alteration, repairing, and servicing of
all ferrous or nonferrous metal work and all other mate-
rials used in lieu thereof and of all air-veyor systems
and air handling systems regardless of material used in­
cluding the setting of all equipment and all reinforce­
ments in connection therewith; (b) all lagging over in­
sulation and all duct lining; (c) testing and balancing of
all air-handling equipment and duct work; (d) the
preparation of all shop and field sketches used in fabri­
cation and erection, including those taken from original
architectural and engineering drawings or sketches; and
(e) all other work included in the jurisdictional claims
of Sheet Metal Workers’ International Association.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT fail and refuse to comply with our As­
sumption of Agreement, our Letter of Assent, and the
terms and conditions of the 1998–2001 collective-
bargaining agreement between the Union and Southeast-
ern Sheet Metal Contractors Association, Inc., and WE
WILL NOT fail to make contractually-required contribu­
tions for unit employees.
WE WILL NOT impermissibly repudiate our agreement
to abide by the terms and conditions of the Union’s
1998–2001 collective-bargaining agreement with South-
eastern Sheet Metal Contractors Association, Inc., and
WE WILL NOT impermissibly withdraw recognition of the
Union as the exclusive collective-bargaining representa­
tive of the unit.
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 recognize and, on request, bargain with the
Union as the exclusive collective-bargaining representa­
tive of our employees in the above unit.
WE WILL comply with our Assumption of Agreement,
our Letter of Assent, and the terms and conditions of the
1998–2001 collective-bargaining agreement between the
Union and Southeastern Sheet Metal Contractors Asso­
ciation, Inc.
WE WILL make whole the unit employees for any loss
of wages and other benefits they may have suffered as a
result of our failure to abide by these agreements since
August 3, 2001, with interest.
WE WILL make all contributions required by the terms
and conditions of the 1998–2001 collective-bargaining
agreement between the Union and Southeastern Sheet
Metal Contractors Association, Inc., and make whole the
unit employees by making all contractually required con­
tributions that have not been made since October 2000,
including any additional amounts applicable to such de­
linquent payments, and by reimbursing the unit employ­
ees for any expenses incurred as a result of our failure to
make contributions since October 2000, with interest.
MALIK ROOFING CORPORATION