Quality Interior Systems

National Labor Relations Board - Board Decisions

Feb 7, 1994

313 N.L.R.B. 642 (N.L.R.B. 1994)

642
313 NLRB No. 93
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See Maislin Transport, 274 NLRB 529 (1985).
Quality Interior Systems, Inc. and United Brother-
hood of Carpenters and Joiners of America,
District Council of Kansas City and Vicinity,
AFL–CIO. Case 17–CA–16350
February 9, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
Upon a charge and an amended charge filed by
United Brotherhood of Carpenters and Joiners of
America, District Council of Kansas City and Vicinity,
AFL–CIO, the Union, on September 28 and November
5, 1992, respectively, the General Counsel of the Na-
tional Labor Relations Board issued a complaint on
November 9, 1992, alleging that the Respondent had
violated Section 8(a)(1) and (5) of the Act by failing
to make contractually required payments to the health
and welfare fund, pension fund, and industry advance-
ment and educational fund. Thereafter, on April 22,
1993, the Regional Director approved an all-party in-
formal settlement agreement of the case. However, on
July 20, 1993, the Regional Director issued an order
revoking approval of, vacating and setting aside the in-
formal settlement, and reissuing the complaint on the
ground that the Respondent had refused to comply
with the settlement.
On August 19, 1993, the Respondent filed an an-
swer to the complaint. However, by letter dated No-
vember 5, 1993, the Respondent withdrew its August
19, 1993 answer, as well as an answer it had pre-
viously filed on January 13, 1993.
On December 3, 1993, the Acting General Counsel
filed a Motion for Summary Judgment with the Board.
On December 7, 1993, 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.
The Respondent filed no response. The allegations in
the motion are therefore undisputed.
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, un-
less 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. Here, the undisputed alle-
gations indicate that although the Respondent initially
filed answers to the complaint, it subsequently with-
drew those answers. Such a withdrawal has the same
effect as the failure to file an answer, i.e., the allega-
tions are considered to be admitted.1 Accordingly, we
grant the Acting General Counsel’s Motion for Sum-
mary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a corporation
with an office and place of business in Lee’s Summit,
Missouri, has been a contractor in the construction in-
dustry engaged in acoustical ceiling installation. Dur-
ing the 12-month period ending October 31, 1992, the
Respondent, in conducting its business operations pur-
chased and received at its Lee’s Summit, Missouri fa-
cility goods valued in excess of $50,000 directly from
points outside the State of Missouri. 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
At all material times the Builders’ Association of
Missouri (the Association) has been an organization
composed of various employers engaged in the con-
struction industry, one purpose of which is to represent
its employer-members and other employers who stipu-
late to be bound to collective-bargaining agreements
negotiated by the Association in negotiating and ad-
ministering collective-bargaining agreements with var-
ious labor organizations, including the Union.
About August 20, 1990, the Association and the
Union entered into a collective-bargaining agreement
(the Association Agreement), effective from August
20, 1990, through March 31, 1993.
About August 15, 1991, the Respondent entered into
a contract stipulation agreement with the Union which
at all material times bound the Respondent to the terms
and conditions of employment of the Association
Agreement.
The following employees of the Respondent (the
unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees employed by Respondent who per-
form work which has historically and traditionally
been performed heretofore by members of the
United Brotherhood of Carpenters and Joiners of
America, AFL–CIO (to include work previously
performed by Lathers) in the geographical area
which extends to and includes the counties: Jack-
son, Clay, Platte, Lafayette, Ray, Carroll, Saline,
Bates, Johnson, Cass, Harrison, Mercer, Grundy,
643QUALITY INTERIOR SYSTEMS
2 The record does not indicate whether the industry advancement
and educational fund is an industry promotion fund and therefore a
permissive subject of bargaining for which no remedy is warranted.
Finger Lakes Plumbing & Heating Co., 254 NLRB 1399 (1981), and
cases cited there. We leave resolution of that issue to the compliance
stage.
Daviess, Caldwell, Livingston, Henry, St. Clair,
Hickory, Camden, Laclede and Vernon in Mis-
souri, and Wyandotte, Johnson, Miami, Linn and
Leavenworth in Kansas.
About August 15, 1991, the Respondent, an em-
ployer engaged in the building and construction indus-
try, granted recognition to the Union as the exclusive
collective-bargaining representative of the unit by en-
tering into the Association Agreement with the Union
for the period August 15, 1991, to March 31, 1993,
without regard to whether the majority status of the
Union has ever been established under the provision of
Section 9 of the Act.
For the period of August 15, 1991, to March 31,
1993, based on Section 9(a) of the Act, the Union has
been and is the limited exclusive collective-bargaining
representative of the unit.
Since about May 1, 1992, the Respondent has failed
to continue in effect all the terms and conditions of the
Association Agreement by failing to make payments to
the health and welfare fund, pension fund, and industry
advancement and educational fund for its employees in
the unit.
Although the terms and conditions of employment
described above are mandatory subjects for the pur-
pose of collective bargaining, the Respondent engaged
in the conduct described above without the Union’s
consent.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively with the exclusive collective-bargaining rep-
resentative of its employees, and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and 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. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing, since May 1, 1992,
to honor the terms and conditions of the 1990–1993
Association Agreement with the Union by failing to
make required contributions to various benefit funds,
we shall order the Respondent to honor the terms of
the Agreement, and to make whole its unit employees
by making all such delinquent contributions, including
any additional amounts due the funds in accordance
with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). In addition, the Respondent shall re-
imburse unit employees for any expenses ensuing from
its failure to make the required contributions, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn.
2 (1980), enfd. mem. 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),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).2
ORDER
The National Labor Relations Board orders that the
Respondent, Quality Interior Systems, Inc., Lee’s Sum-
mit, Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing to honor the terms and conditions of the
1990–1993 Association Agreement with United Broth-
erhood of Carpenters and Joiners of America, District
Council of Kansas City and Vicinity, AFL–CIO by
failing to make required contributions to various bene-
fit funds on behalf of employees in the following unit:
All employees employed by Respondent who per-
form work which has historically and traditionally
been performed heretofore by members of the
United Brotherhood of Carpenters and Joiners of
America, AFL–CIO (to include work previously
performed by Lathers) in the geographical area
which extends to and includes the counties: Jack-
son, Clay, Platte, Lafayette, Ray, Carroll, Saline,
Bates, Johnson, Cass, Harrison, Mercer, Grundy,
Daviess, Caldwell, Livingston, Henry, St. Clair,
Hickory, Camden, Laclede and Vernon in Mis-
souri, and Wyandotte, Johnson, Miami, Linn and
Leavenworth in Kansas.
(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) Honor the terms and conditions of the 1990–
1993 Association Agreement with the Union by mak-
ing all required contributions to the various benefit
funds on behalf of unit employees, and make the unit
employees whole for its failure to do so since May 1,
1992, as set forth in the remedy section of this deci-
sion.
(b) 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
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.’’
records necessary to analyze the amount of backpay
due under the terms of this Order.
(c) Post at its facility in Lee’s Summit, Missouri,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 17, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately on 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 Respondent to ensure that the notices are not
altered, defaced or covered by any other material.
(d) 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 honor the terms and conditions
of the 1990–1993 Association Agreement with United
Brotherhood of Carpenters and Joiners of America,
District Council of Kansas City and Vicinity, AFL–
CIO by failing to make the required contributions to
various benefit funds on behalf of employees in the
unit described below:
All employees employed by us who perform work
which has historically and traditionally been per-
formed heretofore by members of the United
Brotherhood of Carpenters and Joiners of Amer-
ica, AFL–CIO (to include work previously per-
formed by Lathers) in the geographical area
which extends to and includes the counties: Jack-
son, Clay Platte, Lafayette, Ray, Carroll, Saline,
Bates, Johnson, Cass, Harrison, Mercer, Grundy,
Daviess, Caldwell, Livingston, Henry, St. Clair,
Hickory, Camden, Laclede and Vernon in Mis-
souri, and Wyandotte, Johnson, Miami, Linn and
Leavenworth in Kansas.
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 the terms and conditions of the
1990–1993 Association Agreement with the Union by
making all required contributions to the various benefit
funds, and WE WILL make whole unit employees for
our failure to do so since May 1, 1992.
QUALITY INTERIOR SYSTEMS, INC.