Steward & Associates

National Labor Relations Board - Board Decisions

Aug 20, 1992

308 N.L.R.B. 323 (N.L.R.B. 1992)

323
308 NLRB No. 33
STEWARD & ASSOCIATES
Steward & Associates, Inc. and Bricklayers Fringe
Benefit Funds
The Steward Group, Inc. and Bricklayers Fringe
Benefit Funds. Cases 7–CA–33082(1) and 7–
CA–33082(2)
August 20, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon charges filed by the Charging Party on March
26 and April 30, 1992, the General Counsel of the Na-
tional Labor Relations Board issued a consolidated
complaint against Steward & Associates, Inc., the Re-
spondent Associates, and The Steward Group, Inc., the
Respondent Group, alleging that they have violated
Section 8(a)(1) and (5) of the National Labor Relations
Act. Although properly served copies of the charge
and consolidated complaint, the Respondents have
failed to file an answer.
On July 20, 1992, the General Counsel filed a Mo-
tion for Default Judgment. On July 22, 1992, 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 Respondents filed no re-
sponse. The allegations in the motion are therefore un-
disputed.
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 consolidated 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 considered to be
admitted true and shall be so found by the Board.’’
Further, the undisputed allegations in the Motion for
Default Judgment disclose that the acting Regional At-
torney, by letter dated June 15, 1992, notified the Re-
spondents that unless an answer was received by June
29, 1992, a Motion for Default Judgment would be
filed. In the absence of good cause being shown for
the failure to file a timely answer, we grant the Gen-
eral Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Associates, a corporation, with an office
and place of business in Detroit, Michigan, has been
engaged as a masonry contractor in the construction in-
dustry doing commercial and industrial construction.
During the year ending December 31, 1991, in con-
ducting its business operations, Respondent Associates
performed services valued in excess of $50,000, of
which services valued in excess of $50,000 were per-
formed in and for various enterprises, including
Walbridge Aldinger Company and Turner Construction
Company, located in the State of Michigan, which en-
terprises annually purchased and cause to be trans-
ported and delivered at their Michigan facilities and
jobsites goods and materials valued in excess of
$50,000 which were shipped directly to those facilities
and jobsites from points located outside the State of
Michigan.
Respondent Group, a corporation, with an office and
place of business in Detroit, Michigan, has been en-
gaged as a veneer contractor doing residential con-
struction. Since commencing operations about Novem-
ber 1, 1991, Respondent Group, in conducting its busi-
ness operations, provided services valued in excess of
$50,000 for JFA Non-Profit Housing Corporation, an
enterprise within the State of Michigan, and on a pro-
jected basis for the 12-month period commencing
about November 1, 1991, will provide services valued
in excess of $50,000 to JFA Non-Profit Housing Cor-
poration which enterprise based on a annual projection
of its operations since about May 1, 1992, will derive
gross revenues in excess of $500,000 from the rental
of an apartment complex.
We find that the Respondents are employers en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that Metropolitan Detroit Brick-
layers District Council and the International Union of
Bricklayers and Allied Craftsmen, AFL–CIO, Local
Union No. 2, 26 and 35 (collectively 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 Respondent Associates
and Respondent Group (the units) constitute the units
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees performing masonry work em-
ployed by Respondents; but excluding guards and
supervisors as defined in the Act.
At all times material, by virtue of a series of collec-
tive-bargaining agreements which Respondent Associ-
ates and Respondent Group entered into and became
parties with the Union, the most of which are effective
by their terms from June 1, 1990, until May 31, 1994,
the Union has been the exclusive representative for
purposes of collective bargaining of the employees in
the units described above and, by virtue of Section
9(a) of the Act, has been the exclusive representative
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of all employees in the units for the purposes of col-
lective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment.
The collective-bargaining agreements referred to
above provide, inter alia, for certain fringe benefit con-
tributions to be made to the Charging Party by the Re-
spondents on behalf of the units.
Since about September 26, 1991, and continuing to
date, the Respondents through their agent, Charles
Steward, have failed and refused to timely pay all
fringe benefit contributions; to pay liquidated damages
owed for the nonpayment of the required contributions;
and to submit accurate monthly fringe benefit reports
to the various fringe benefit funds, as required by the
collective-bargaining agreement described above.
Since about December 12, 1991, and February 21,
1992, and continuing to date, by letters and telephone
communications, the Charging Party, on behalf of the
Union, has requested the Respondents make available
for review their payroll records and nonpayroll check
registry, including contribution reports for the period
of April 1991 (for Respondent Associates), and Octo-
ber 1991 (for Respondent Group) to date, so that the
Charging Party could audit the Respondents’ compli-
ance with the fringe benefit contributions provision of
the collective-bargaining agreements referred to above.
This information is necessary and relevant to the
Union’s performance of its functions as the collective-
bargaining representative of the Units.
Since December 12, 1991, and February 21, 1992,
respectively, Respondent Associates and Respondent
Group have failed and refused to furnish the informa-
tion as requested.
CONCLUSION OF LAW
By failing and refusing since September 26, 1991, to
timely pay all fringe benefit contributions, to pay liq-
uidated damages owed for the nonpayment of required
contributions, and to submit accurate monthly fringe
benefit reports to the various fringe benefit funds as re-
quired by the contracts, and by failing and refusing
since December 12, 1991, and February 21, 1992, re-
spectively, to make available for review their payroll
records and nonpayroll check registry, including con-
tribution reports, so that the Charging Party could audit
their compliance with the fringe benefit fund provi-
sions of the collective-bargaining agreement, the Re-
spondents have failed and refused to bargain in good
faith with the Union and have thereby engaged in un-
fair 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 Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Specifically, having found that the Respondents have
violated Section 8(a)(5) and (1) by failing to make
contractually required payments for fringe benefit con-
tributions and by failing to pay liquidated damages
owed for such nonpayment, we shall order the Re-
spondents to make whole their unit employees by mak-
ing all payments that have not been made and that
would have heen made but for the Respondents’ un-
lawful failure to make them, including any additional
amounts applicable to such delinquent payments as de-
termined in accordance with the criteria set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979). In
addition, the Respondents shall reimburse unit employ-
ees for any expenses ensuing from their 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 Protec-
tion Service, 183 NLRB 682 (1970), with interest as
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Further, having found that the Respondents have
also unlawfully failed to submit accurate monthly
fringe benefit reports to the various fringe benefit
funds, we shall order the Respondents to submit re-
ports to the funds.
Finally, having found that the Respondents have un-
lawfully failed to make requested information available
to the Union, we shall order the Respondents to make
the information available to the Union.
ORDER
The National Labor Relations Board orders that the
Respondents, Steward & Associates, Inc. and The
Steward Group, Inc., Detroit, Michigan, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to timely pay all fringe ben-
efit contributions; to pay liquidated damages owed for
the nonpayment of the required contributions; and to
submit accurate monthly fringe benefit reports into the
various fringe benefit funds, as required by their col-
lective-bargaining agreements with the Union.
(b) Failing and refusing to provide necessary and
relevant information to the Union, or to the Charging
Party on its behalf, on request.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
325STEWARD & ASSOCIATES
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.’’
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of
employees in the units described below with respect to
wages, rates of pay, hours of employment, and other
terms and conditions of employment:
All employees performing masonry work em-
ployed by Respondents; but excluding guards and
supervisors as defined in the Act.
(b) Make all required payments for fringe benefit
fund contributions and for liquidated damages for the
nonpayment thereof that have not been paid since Sep-
tember 26, 1991, and make whole the unit employees
for any losses that they may have incurred as a result
of the failure to make such payments, as set forth in
the remedy section of this decision.
(c) File accurate monthly fringe benefit reports for
the period since September 26, 1991, as required by
the collective-bargaining agreement.
(d) Make available to the Charging Party for review
payroll records and nonpayroll check registry, includ-
ing contribution reports for the periods requested, so
that the Charging Party can audit compliance with the
fringe benefit contribution provisions of the collective-
bargaining agreement.
(e) 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 amounts due under
the terms of this Order.
(f) Post at its facility in Detroit, Michigan, copies of
the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regiona1 Direc-
tor for Region 7, after being signed by the Respond-
ents’ authorized representative, shall be posted by the
Respondents immediatey upon receipt and maintained
for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered,
defaced, or covered by any other material.
(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 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 timely pay all fringe
benefit contributions; to pay liquidated damages owed
for the nonpayment of the required contributions; and
to submit accurate monthly fringe benefit reports into
the various fringe benefit funds as required by the col-
lective-bargaining agreement.
WE WILL NOT fail and refuse to provide Metropoli-
tan Detroit Bricklayers District Council and the Inter-
national Union of Bricklayers and Allied Craftsmen,
AFL–CIO, Local Union No. 2, 26, and 35, or to the
Bricklayers Fringe Benefit Funds on its behalf, with
requested information that is necessary and relevant to
its functions as exclusive bargaining representative.
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, on request, bargain in good faith with the
Union as the exclusive collective-bargaining represent-
ative of employees in the unit described below with re-
spect to wages, rates of pay, hours of employment, and
other terms and conditions of employment.
All employees performing masonry work em-
ployed by Steward & Associates, Inc., but exclud-
ing guards and supervisors as defined in the Act.
WE WILL make all required payments for fringe ben-
efit fund contributions and for liquidated damages for
the nonpayment thereof that have not been paid since
September 26, 1991, and make whole the unit employ-
ees for any losses that they may have incurred as a re-
sult of our failure to make such payments.
WE WILL file accurate monthly fringe benefit reports
for the period since September 26, 1991, as required
by our collective-bargaining agreement with the Union.
WE WILL make available to the Bricklayers Fringe
Benefit Funds for review our payroll records and non-
payroll check registry, including contribution reports
for the periods of April 1991 to date and October 1991
to date, respectively.
STEWARD & ASSOCIATES, INC.
THE STEWARD GROUP, INC.