Sun Cadillac Buick Sterling

National Labor Relations Board - Board Decisions

Sep 9, 1992

308 N.L.R.B. 753 (N.L.R.B. 1992)

753
308 NLRB No. 104
SUN CADILLAC BUICK STERLING
Sun Cadillac Buick Sterling, Inc. and Automobile
Mechanics Local 701, International Association
of Machinists and Aerospace Workers, AFL–
CIO. Case 13–CA–30931
September 9, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Upon a charge filed by the Union on April 9, 1992,
the General Counsel of the National Labor Relations
Board issued a complaint against Sun Cadillac Buick
Sterling, Inc., the Respondent, alleging that it has vio-
lated Section 8(a)(1) and (5) 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 10, 1992, the General Counsel filed a
Motion to Transfer Proceedings to the Board and Mo-
tion for Summary Judgment. On August 12, 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 Respondent 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 complaint, unless good cause
is shown. The complaint states that unless an answer
is filed within 14 days of service, ‘‘all of the allega-
tions in the complaint shall be deemed to be admitted
to be true and shall be so found by the Board.’’ Fur-
ther, the undisputed allegations in the Motion for Sum-
mary Judgment disclose that a Board attorney, by letter
dated June 5, 1992, notified the Respondent that unless
an answer was received by close of business on June
19, 1992, 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 General
Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Illinois corporation, with an of-
fice and place of business in Chicago, Illinois, has
been engaged in the retail sale and service of auto-
mobiles and related products. During the year preced-
ing issuance of the complaint, the Respondent, in the
course and conduct of its business operations, derived
gross revenues in excess of $500,000 and purchased
and received at its Chicago, Illinois facility products,
goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of Illinois. We find
that the Respondent is an employer engaged in com-
merce 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 (the
unit), constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All mechanics, bodymen, painters, apprentices,
lube rack attendants and semi-skilled workers em-
ployed by Respondent excluding guards and su-
pervisors as defined in the Act.
Since at least 1980 and at all times material herein,
the Union has been the designated exclusive collective-
bargaining representative of the unit and since that
time period the Union has been recognized as such
representative by the Respondent. Such recognition has
been embodied in successive collective-bargaining
agreements, the most recent of which is effective by
its terms for the period July 1, 1989, to June 30, 1992.
At all times since at least 1980, the Union, by virtue
of Section 9(a) of the Act, has been, and is, the exclu-
sive representative of the unit for the purposes of col-
lective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment.
Since on or about December 1, 1991, and continuing
to date, Respondent failed to continue in full force and
effect all the terms and conditions of the collective-
bargaining agreement described above by failing to
remit contributions, on behalf of employees in the unit
to the Automobile Mechanics Local No. 701 Union
and Industry Welfare and Pension Funds as required
under articles XI and XII of the agreement.
The terms and conditions of the agreement the Re-
spondent failed to continue in full force and effect are
terms and conditions of employment of employees in
the unit and are mandatory subjects of bargaining.
The Respondent engaged in the conduct described
above without the consent or agreement of the Union
at times when such was required pursuant to the provi-
sions of Section 8(d) of the Act.
CONCLUSION OF LAW
By failing since December 1, 1991, to remit contrac-
tually required contributions to the welfare and pension
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.’’
funds, the Respondent has failed and refused, and is
failing and refusing, to bargain collectively and in
good faith with the representative of its employees,
and the Respondent thereby has been engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5), 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 to make contractually
required payments for welfare and pension benefits, we
shall order the Respondent to make whole its unit em-
ployees by making all payments that have not been
made and that would have been made but for the Re-
spondent’s unlawful failure to make them, including
any additional amounts applicable to such delinquent
payments as determined in accordance with the criteria
set forth in Merryweather Optical Co., 240 NLRB
1213 (1979). In addition, the Respondent shall reim-
burse 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. 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), with
interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Sun Cadillac Buick Sterling, Inc., Chi-
cago, Illinois, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing to continue in full force and effect all the
terms and conditions of the collective-bargaining
agreement by failing to remit contractually required
contributions to the welfare and pension funds.
(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) On request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of
employees in the unit described below with respect to
wages, rates of pay, hours of employement, and other
terms and conditions of employment:
All mechanics, bodymen, painters, apprentices,
lube rack attendants and seim-skilled workers em-
ployed by Respondent excluding guards and su-
pervisors as defined in the Act.
(b) Make all required contributions to the welfare
and pension funds that have not been made since De-
cember 1, 1991, and make the unit employees whole
for any losses they may have suffered as a result of
the failure to make such payments, as set forth in the
remedy section of this decision.
(c) 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.
(d) Post at its facility in Chicago, Illinois, copies of
the attached notice marked ‘‘Appendix.’’1 Copies of
the notice, on forms provided by the Regional Director
for Region 13, 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-
spondent to ensure that the notices are not altered, de-
faced, 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 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 continue in full force and ef-
fect all the terms and conditions of the collective-bar-
gaining agreement by failing to remit contributions on
behalf of employees in the unit to the Automobile Me-
chanics Local No. 701 Union and Industry Welfare
and Pension Funds as required under articles XI and
XII of the agreement.
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-
755SUN CADILLAC BUICK STERLING
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 mechanics, bodymen, painters, apprentices,
lube rack attendants and semi-skilled workers em-
ployed by us excluding guards and supervisors as
defined in the Act.
WE WILL make all required contributions to the wel-
fare and pension funds that have not been made since
December 1, 1991, and make the unit employees
whole for any losses they may have suffered as a re-
sult of the failure to make such payments, with inter-
est.
SUN CADILLAC BUICK STERLING, INC.