Rhodes Heating & Roofing Co.

National Labor Relations Board - Board Decisions

Sep 15, 1994

314 N.L.R.B. 1166 (N.L.R.B. 1994)

1166
314 NLRB No. 192
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rhodes Heating & Roofing Co. and United Union of
Roofers, Waterproofers and Allied Workers
Local No. 20. Case 17–CA–17332
September 15, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
Upon a charge filed by the United Union of Roof-
ers, Waterproofers and Allied Workers, Local No. 20
(the Union), on April 12, 1994, the General Counsel
of the National Labor Relations Board issued a com-
plaint on June 20, 1994, against Rhodes Heating &
Roofing Co., the Respondent, alleging that it has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act. Although properly served copies of the
charge and complaint, the Respondent failed to file an
answer.
On August 8, 1994, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On Au-
gust 9, 1994, 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 Respond-
ent 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, 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. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated July 19, 1994,
notified the Respondent that unless an answer were re-
ceived by August 4, 1994, a motion for summary judg-
ment would be filed.
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 Respondent, a corporation, with an office and
place of business in Lawrence, Kansas, has been en-
gaged in the installation of heating and air-condi-
tioning equipment and duct work. During the year end-
ing October 30, 1993, the Respondent purchased and
received at its Lawrence, Kansas facility products,
goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of Kansas. We find
that the Respondent is an employer engaged in com-
merce 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 (the
unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All workmen in the roofing trade employed by
the Respondent in the Counties of Leavenworth,
Wyandotte, Johnson, Miami, Linn, Anderson,
Franklin, Douglas, and Jefferson in Kansas, and
Bates, Benton, Carroll, Cass, Cedar, Clay,
Chariton, Jackson, Johnson, Lafayette, Pettis,
Platte, Ray, and Saline in Missouri, but excluding
office clerical employees, guards, supervisors as
defined in the Act, and all other employees.
At all material times the Union has been the des-
ignated exclusive collective-bargaining representative
of the unit and has been recognized as the representa-
tive by the Respondent. This recognition has been em-
bodied in a recognition agreement dated February 11,
1993, and successive collective-bargaining agreements,
the most recent of which is effective August 23, 1993
to June 1, 1996. At all times since February 11, 1993,
based on Section 9(a) of the Act, the Union has been
the exclusive collective-bargaining representative of
the unit.
At all material times the Respondent has failed to
make certain contractually required contributions to the
health and welfare fund, local pension fund, national
pension fund, vacation fund, United Way, and appren-
tice fund due for the months of November and Decem-
ber 1993.
At all material times the Respondent has also failed
to remit to the Union dues which the Respondent de-
ducted from employees’ paychecks during the months
of November and December 1993.
Although the subjects set forth above relate to
wages, hours, and other terms and conditions of em-
ployment of the unit and are mandatory subjects for
the purposes of collective bargaining, the Respondent
has engaged in the conduct described above without
prior notice to the Union, without affording the Union
the opportunity to bargain with the Respondent with
respect to this conduct, and without the Union’s con-
sent.
1167RHODES HEATING & ROOFING CO.
1 Although the complaint generally alleges that the various funds
are mandatory subjects of bargaining, there is no further discussion
or precedent cited in the motion in support of finding that United
Way contributions, specifically, constitute a mandatory subject of
bargaining for which a remedy would be warranted in this pro-
ceeding. We shall leave this issue to compliance.
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
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.’’
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 within the meaning of
Section 8(d) of the Act, and has thereby engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) 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.
Specifically, having found that the Respondent has
violated Section 8(a)(5) and (1) by failing to make
contractually required payments to various fringe ben-
efit funds due for the months of November and De-
cember 1993, we shall order the Respondent to make
whole its unit employees by making all such payments
that have not been made and that would have been
made but for the Respondent’s unlawful failure to
make them, including any additional amounts applica-
ble to such delinquent payments as determined in ac-
cordance with the criteria set forth in Merryweather
Optical Co., 240 NLRB 1213, 1216 (1979). In addi-
tion, the Respondent shall reimburse unit employees
for any expenses ensuing from its failure to make such
required payments, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 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 Re-
tarded, 283 NLRB 1173 (1987).1
Further, having found that the Respondent violated
Section 8(a)(5) and (1) by failing to remit to the Union
dues that were deducted from the pay of unit employ-
ees during November and December 1993, we shall
order the Respondent to remit such withheld dues to
the Union, with interest, to be computed in the manner
prescribed in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Rhodes Heating & Roofing Co., Law-
rence, Kansas, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the United
Union of Roofers, Waterproofers and Allied Workers,
Local No. 20, as the exclusive collective-bargaining
representative of the employees in the following unit,
by failing to make contributions to various benefit
funds on behalf of employees and to remit dues to the
Union as required by the 1993–1996 collective-bar-
gaining agreement:
All workmen in the roofing trade employed by
the Respondent in the Counties of Leavenworth,
Wyandotte, Johnson, Miami, Linn, Anderson,
Franklin, Douglas, and Jefferson in Kansas, and
Bates, Benton, Carroll, Cass, Cedar, Clay,
Chariton, Jackson, Johnson, Lafayette, Pettis,
Platte, Ray, and Saline in Missouri, but excluding
office clerical employees, guards, supervisors as
defined in the Act, and all other employees.
(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 1993–1996 collec-
tive-bargaining agreement with the Union.
(b) Make whole the unit employees by making all
payments to the various fringe benefit funds due for
November and December 1993, as required by the
1993–1996 collective-bargaining agreement, and by re-
imbursing employees for any expenses ensuing from
the failure to make the required payments, in the man-
ner set forth in the remedy section of this decision.
(c) Make the Union whole for any losses resulting
from the Respondent’s failure to remit union dues de-
ducted from the pay of unit employees during Novem-
ber and December 1993, 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 backpay
due under the terms of this Order.
(e) Post at its facility in Lawrence, Kansas, copies
of the attached notice marked ‘‘Appendix.’’2 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-
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 fail and refuse to bargain with United
Union of Roofers, Waterproofers and Allied Workers,
Local No. 20, as the exclusive collective-bargaining
representative of the following unit by failing to make
contributions to various benefits funds on behalf of
employees and by failing to remit to the Union dues
as required by the 1993–1996 collective-bargaining
agreement:
All workmen in the roofing trade employed by us
in the Counties of Leavenworth, Wyandotte, John-
son, Miami, Linn, Anderson, Franklin, Douglas,
and Jefferson in Kansas, and Bates, Benton, Car-
roll, Cass, Cedar, Clay, Chariton, Jackson, John-
son, Lafayette, Pettis, Platte, Ray, and Saline in
Missouri, but excluding office clerical employees,
guards, supervisors as defined in the Act, and all
other employees.
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 the 1993–1996
collective-bargaining agreement with the Union.
WE WILL make whole the unit employees by making
all payments to the various fringe benefit funds due for
November and December 1993, as required by the
1993–1996 collective-bargaining agreement, and by re-
imbursing employees for any expenses ensuing from
our failure to make the required payments.
WE WILL make the Union whole for any losses re-
sulting from our failure to remit union dues deducted
from the pay of unit employees during November and
December 1993.
RHODES HEATING & ROOFING CO.