R & R Brickwork, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1990

299 N.L.R.B. 542 (N.L.R.B. 1990)

542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
l
R & R Brickwork, Inc. and Laborers Local 660, af-
filiated with the Eastern Missouri Laborers Dis-
trict Council. Case 14-CA-20665
August 23, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIATT
Upon a charge filed by the Union March 16,
1990, and amended April 2, 1990, the General
Counsel of the National Labor Relations Board
issued a complaint April 9, 1990, against R & R
Brickwork, 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, the Respond-
ent has failed to file an answer
On May 17, 1990, the General Counsel filed a
Motion for Summary Judgment On May 21, 1990,
the Board issued an order transferring the proceed-
ing 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 delegat-
ed its authority m this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
Section 102 20 of the Board's Rules and Regula-
tions 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 of the allegations in the complaint
shall be deemed to be admitted to be true and shall
be so found by the Board" Further, the undisputed
allegations in the Motion for Summary Judgment
disclose that counsel for the General Counsel, by
letter dated May 8, 1990, notified the Respondent
that unless an answer was received by close of
business May 11, 1990, 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
Genera' Counsel's Motion for Summary Judgment
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a corporation with an office
and place of business in St Charles, Missouri, has
been engaged as a bricklaying and masonry con-
tractor in the building and construction industry
During the 12 months precedmg the issuance of the
complaint, the Respondent performed services
valued in excess of $50,000 to customers within the
State of Missouri, which customers, an turn, meet
other than a solely indirect standard for the asser-
tion of Board jurisdiction We find that the Re-
spondent 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
The following employees of the Respondent con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act
All mason tenders and mason tender foremen
employed by the Employer at its work sites lo-
cated in the City and County of St Louis, St
Charles, Warren, Lincoln, and Montgomery
counties in the State of Missouri, EXCLUD-
ING office clerical and professional employ-
ees, guards, and supervisors as defined in the
Act, and all other employees
At all material times, the Mason Contractors' As-
sociation of St Louis, Missouri (Association), has
been an organization composed of approximately
60 employers which exists for the purpose, inter
aim, of representing its employer-members in nego-
tiating and administering collective-bargaining
agreements with the Union
The Respondent, although not a member of the
Association, executed a 3-year collective-bargain-
ing agreement negotiated by the Union and the As-
sociation, effective by its terms from June 1, 1986,
through May 31, 1989, which provided, in perti-
nent part, for the following renewal clause "For
Use By Contractors Not Members of Mason Con-
tractors' Association of St Louis"
The undersigned hereby agrees with the Union
to accept and be bound by all the foregoing
Agreement, and also agrees to be bound by all
renewals, changes or extensions thereto made
by the original parties, unless notice of termi-
nation is given to the Union by the under-
signed not less than sixty (60) days or more
than ninety (90) days prior to any termination
date
The Respondent never gave the Union notice to
terminate the collective-bargaining agreement
About June 1, 1989, pursuant to Section 8(0 of
the Act, the Union and the Association negotiated
299 NLRB No 80
R R BRICKWORK 543
a 3-year collective-bargaining agreement effective
by its terms from June 1, 1989, through May 31,
1992, which terms and conditions the Respondent
adopted
At all material times, the Union, by virtue of
Section 9(a) of the Act, has been, and is, the limit-
ed exclusive representative of the unit for the pur-
poses of collective bargaining with respect to rates
of pay, wages, hours of employment, and other
terms and conditions of employment 1
Commencing in January 1990, the Respondent
has failed to comply with the terms of its collec-
tive-bargaining agreement with the Union by the
following acts and conduct
A Failing to pay contractually required wage
rates
B Failing to make full and accurate, fringe bene-
fit reports to the Union regarding the employees
employed by the Respondent and their hours
worked
C Failing to make contributions to the Union
for the fringe benefits set forth in the collective-
bargaining agreement, and more specifically, the
Construction Industry Laborers' Welfare Fund of
Missouri and the Construction Industry Laborers'
Pension Trust Fund of Missouri
We find that, by the acts and conduct described
above, the Respondent has failed and refused, and
is failing and refusing, to bargain collectively and
in good faith with the representative of its employ-
ees, and the Respondent thereby has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act
CONCLUSION OF LAW
By failing to pay contractually required wage
rates, failing to make contractually required fringe
benefit contributions, and failing to submit full and
accurate fringe benefit reports to the Union regard-
ing its employees and the hours they worked, the
Respondent is failing and refusing to bargain col-
lectively and in good faith with the Union and has
engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act
'Par 5(E) of the complaint alleges that the Union, by virtue of Sec
9(a) of the Act, is the exclusive representative of the unit employees It
appears, however, based on the Respondent's adoption of the 8(f) con-
tract between the Association 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 d Sons, 282
NLRB 1375 (1986), 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 bargaining representative of the urut employees Id at
1386-1387
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 designed to effectuate the policies of the
Act
We shall order the Respondent to comply with
the collective-bargaining agreement by paying the
contractually required wage rates, by making the
contractually required fnnge benefit contnbutions,
and by submitting the contractually required fringe
benefit reports to the Union that were unlawfully
withheld since January 1990 In making the em-
ployees whole for their lost wages the appropriate
method of determining backpay is specified in Ogle
Protection Service, 183 NLRB 682, 683 (1970) In
addition, the Respondent shall make its employees
whole for any losses resulting from its failure to
make contractual fringe benefit contributions in the
manner. prescribed in Kraft Plumbing & Heating,
252 NLRB 891 fn 2 (1980), enfd mem 661 F 2d
940 (9th Cir 1981) This shall include reimbursing
employees for any contributions they themselves
may have made, with interest, for the maintenance
of any fund after the Respondent made its unilater-
al changes 2 Interest on any money due and owing
employees shall be computed in the manner pre-
scribed in New Horizons for the Retarded, 283
NLRB 1171 (1987) The method of determining the
additional amounts, if any, owed to the fringe bene-
fit funds is specified in Merryweather Optical Co,
240 NLRB 1213 (1979)
ORDER
The National Labor Relations Board orders that
the Respondent, R & R Brickwork, Inc , St
Charles, Missouri, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Failing to comply with the terms of its col-
lective-bargaining agreement with Laborers Local
660 by failing to pay contractually required wage
rates, failing to make contractually required fringe
benefit contributions, and failing to submit full and
accurate fringe benefit reports to the Union regard-
ing the employees employed by the Respondent
and their hours worked
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
2 See Concord Metal, 295 NLRB 912 (1989)
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) On request, bargain with the Union as the
limited exclusive representative of the employees in
the appropriate unit and comply with the collec-
tive-bargaining agreement effective by its terms
from June 1, 1989, through May 31, 1992, by
paying the contractually required wage rates,
making the contractually required fringe benefit
contnbutions, and submitting full and accurate
fringe benefit reports to the Union regarding the
employees employed by the Respondent and their
hours worked The appropriate unit is
All mason tenders and mason tender foremen
employed by the Employer at its work sites lo-
cated in the City and County of St Louis, St
Charles, Warren, Lincoln, and Montgomery
counties in the State of Missouri, EXCLUD-
ING office clerical and professional employ-
ees, guards, and supervisors as defined in the
Act, and all other employees
(b) Make the umt employees whole for any loss
of wages and benefits they may have suffered be-
cause of the Respondent's failure to comply with
the terms of its collective-bargaining agreement
with the Union, as set forth in the remedy section
of this Decision and Order
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(d) Post at its facility in St Charles, Missouri,
copies of the attached notice marked "Appendix "3
Copies of the notice, on forms provided by the Re-
gional Director for Region 14, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent 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 Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
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 Nation-
al 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"
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 ordered us to post and abide by this notice
WE WILL NOT fall to comply with our collec-
tive-bargaining agreement with Laborers Local
660, affiliated with the Eastern Missouri Laborers
District Council, effective from June 1, 1989,
through May 31, 1992, by failing to pay contrac-
tually required wage rates, failing to make contrac-
tually required benefit fund contributions, and fail-
ing to submit full and accurate fringe benefit re-
ports to the Union regarding the employees em-
ployed by the Respondent and their hours worked
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL, on request, bargain with the Union as
the limited exclusive representative of the employ-
ees in the appropriate unit and comply with the
collective-bargaimng agreement effective by its
terms from June 1, 1989, through May 31, 1992, by
paying contractually required wage rates, making
contractually required fringe benefit contributions,
and submitting full and accurate fringe benefit re-
ports to the Union regarding the employees em-
ployed by the Respondent and their hours worked
The appropriate unit is
All mason tenders and mason tender foremen
employed by the Employer at its work sites lo-
cated in the City and County of St Louis, St
Charles, Warren, Lincoln, and Montgomery
counties in the State of Missouri, EXCLUD-
ING office clerical and professional employ-
ees, guards, and supervisors as defined in the
Act, and all other employees
WE WILL make our unit employees whole, with
interest, for any losses resulting from our failure to
comply with our collective-bargaining agreement
and WE WILL reimburse you for any expenses ensu-
ing from our unlawful failure to make fringe bene-
fit contributions pursuant to our collective-bargain-
ing agreement with the Union
R & R BRICKWORK, INC