Victor's Roofing

National Labor Relations Board - Board Decisions

Apr 29, 1994

313 N.L.R.B. 1190 (N.L.R.B. 1994)

1190
313 NLRB No. 206
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1The complaint’s commerce data and unit description suggest that
the Respondent is a construction industry employer subject to the
provisions of Sec. 8(f) of the Act. Accordingly, in the absence of
an allegation that the bargaining relationship was actually based on
9(a) majority support, we find that the relationship was entered into
pursuant to Sec. 8(f), and that the Union is therefore the limited 9(a)
representative of the unit employees for the period covered by the
contract. See Electri-Tech, Inc., 306 NLRB 707 fn. 2 (1992), and
Deboise Contractors Co., 308 NLRB 470 fn. 3 (1992) (citing John
Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron
Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988)).
Victor’s Roofing Inc. and Local Union No. 221 of
the United Union of Roofers, Waterproofers
and Allied Workers (AFL–CIO). Case 37–CA–
3418
April 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
Upon a charge filed by Local Union No. 221 of the
United Union of Roofers, Waterproofers and Allied
Workers (AFL–CIO) (the Union) on November 22,
1993, the General Counsel of the National Labor Rela-
tions Board issued a complaint on December 29, 1993,
against Victor’s Roofing Inc. (the Respondent) alleging
that it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act. Although properly served
copies of the charge and complaint, the Respondent
failed to file an answer.
On March 29, 1994, the General Counsel filed a
Motion for Summary Judgment with the Board. On
March 31, 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 Re-
spondent filed no response. The allegations in the mo-
tion 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 subregion, by letter dated January 19,
1994, notified the Respondent that unless an answer
were received by January 26, 1994, a Motion for Sum-
mary 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
At all material times, the Respondent, a Hawaii cor-
poration with an office and place of business Hono-
lulu, Hawaii, has been engaged in the construction in-
dustry in the State of Hawaii. During the 12-month pe-
riod preceding the issuance of the complaint, the Re-
spondent, in conducting its operations, purchased and
received at its Honolulu, Hawaii facility goods valued
in excess of $50,000 from other enterprises located
within the State of Hawaii, each of which other enter-
prises had received these goods directly from points
outside the State of Hawaii. We find that the Respond-
ent 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 mean-
ing 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 those employees of the Respondent covered
under the terms of the collective bargaining agree-
ment by and between the Union and Hawaii
Roofing Contractors Association effective Novem-
ber 1, 1992 through November 2, 1997, excluding
guards and supervisors as defined in the Act.
Since 1987, and at all material times, the Union has
been the designated exclusive collective-bargaining
representative of the unit, and since 1987 the Union
has been recognized as such representative by the Re-
spondent. Such recognition has been embodied in suc-
cessive collective-bargaining agreements, the most of
recent of which is effective by its terms for the period
of November 1, 1992, through November 2, 1997.
At all times since 1987, the Union, by virtue of Sec-
tion 9(a) of the Act, has been, and is, the limited ex-
clusive representative of the unit for the purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment.1
At all times material, the Respondent has been sig-
natory to a collective-bargaining agreement by and be-
tween the Union and the Hawaiian Roofing Contrac-
tors Association, the most recent effective from No-
vember 1, 1992, through November 2, 1997, which
contained provisions requiring that the Respondent
make periodic contributions to various trust funds, as
follows:
1191VICTOR’S ROOFING
2 Any additional amounts due the funds will be determined at com-
pliance in accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979).
(i) Section 14, Roofers Local 221 Health and
Welfare Fund
(ii) Section 15, Roofers Local 221 Pension
Fund
(iii) Section 16, Roofers Local 221 Annuity
Fund
(iv) Section 17, Roofers Local 221 Vacation
and Holiday Fund
(v) Section 17(a), Roofers Local 221 Vacation
and Holiday Administration Account
(vi) Section 18, Joint Apprenticeship and Train-
ing Fund
Section 19 of the collective-bargaining agreement
provides that the Respondent is to pay liquidated dam-
ages of 10 percent of any delinquent payment made to
the various funds listed above.
Section 4(a) of the collective-bargaining agreement
provides that the Respondent is to remit to the Union
on a periodic basis union dues and fees that have been
deducted from wages pursuant to receipt of proper au-
thorizations from employees.
The Respondent was delinquent in remitting to the
Union the trust fund payments, as described above, for
August 1993, and has failed and refused to make con-
tributions to the various trust funds, as described
above, for September and October 1993.
The Respondent has failed and refused to remit pay-
ment for the 10-percent liquidated damages which it
owes for its delinquent trust fund contributions for Au-
gust, September, and October 1993.
The Respondent has failed and refused to remit
union dues and fees, as described above, for October
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 the consent of the
Union, and without having afforded the Union an op-
portunity to negotiate and bargain as the limited exclu-
sive representative of the Respondent’s employees with
respect to such acts and conduct.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has failed and refused, and is failing and re-
fusing, to bargain collectively and in good faith with
the representative of its employees, and has thereby
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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 timely remit to the
Union the various trust fund payments for August
1993, by failing and refusing to make contractually re-
quired contributions to the various trust funds for Sep-
tember and October 1993, and by failing and refusing
to remit payment for the 10-percent liquidated dam-
ages for such delinquent payments for August, Septem-
ber, and October 1993 as required by the agreement,
we shall order the Respondent to remit any such delin-
quent trust fund payments to the Union and to make
all such delinquent contributions to the various trust
funds, and to remit the unremitted 10-percent liq-
uidated damages for such delinquent contributions.2 In
addition, the Respondent shall reimburse unit employ-
ees for any expenses ensuing from its failure to make
the required contributions, as set forth in Kraft Plumb-
ing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661
F.2d 940 (9th Cir. 1981), such amounts to be com-
puted in the manner set forth in Ogle Protection Serv-
ice, 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).
In addition, having found that the Respondent vio-
lated Section 8(a)(5) and (1) by failing to remit to the
Union dues and fees that were deducted from the pay
of unit employees pursuant to valid dues-checkoff au-
thorizations for October 1993, we shall order the Re-
spondent to remit such withheld dues and fees to the
Union as required by the agreement, with interest as
prescribed in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Victor’s Roofing Inc., Honolulu, Hawaii,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with
Local Union No. 221 of the United Union of Roofers,
Waterproofers and Allied Workers (AFL–CIO), as the
limited exclusive representative of its employees in the
unit described below, by failing and refusing to timely
remit trust fund payments to the Union and to make
contractually required contributions to the various trust
funds; failing and refusing to remit payment for the
10-percent liquidated damages which it owes for its
delinquent trust fund contributions as required by the
agreement; and failing and refusing to remit union
dues and fees that have been deducted from employees
pursuant to receipt of proper authorizations as speci-
fied in the agreement:
1192 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.’’
All those employees of the Respondent covered
under the terms of the collective bargaining agree-
ment by and between the Union and Hawaii
Roofing Contractors Association effective Novem-
ber 1, 1992 through November 2, 1997, excluding
guards and supervisors as defined in the Act.
(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) Remit any delinquent trust fund payments to the
Union for the month of August 1993, make all con-
tractually required contributions to the various trust
funds that have not been made for September and Oc-
tober 1993, remit the unremitted 10-percent liquidated
damages for such delinquent fund contributions for
August, September, and October 1993 as required by
the agreement, and remit to the Union dues and fees
that have been deducted from its unit employees pursu-
ant to proper authorizations but withheld from the
Union for October 1993, with interest, as set forth in
the remedy section of this Decision and Order.
(b) Make whole the unit employees for any expenses
they may have incurred as a result of the Respondent’s
failure to make contractually required contributions to
the various trust funds, as set forth in the remedy sec-
tion 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 amount of backpay
due under the terms of this Order.
(d) Post at its facility in Honolulu, Hawaii, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 20, 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 and refuse to bargain in good
faith with Local Union No. 221 of the United Union
of Roofers, Waterproofers and Allied Workers (AFL–
CIO), as the limited exclusive representative of our
employees in the unit described below, by failing and
refusing to timely remit trust fund payments to the
Union and to make contractually required contributions
to the various trust funds; failing and refusing to remit
payment for the 10-percent contributions as required
by the agreement; and failing and refusing to remit
union dues and fees that have been deducted from em-
ployees pursuant to receipt of proper authorizations as
specified in the agreement:
All of our employees covered under the terms of
the collective bargaining agreement by and be-
tween the Union and Hawaii Roofing Contractors
Association effective November 1, 1992 through
November 2, 1997, excluding guards and super-
visors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL remit any delinquent trust fund payments
to the Union for August 1993, make all contractually
required contributions to the various trust funds that
have not been made for September and October 1993,
remit the unremitted 10-percent liquidated damages for
such delinquent fund contributions for August, Septem-
ber, and October 1993 as required by the agreement,
and remit to the Union dues and fees that have been
deducted from the unit employees pursuant to proper
authorizations but withheld from the Union for Octo-
ber 1993, with interest.
WE WILL make whole the unit employees for any
expenses they may have incurred as a result of our
failure to make contractually required contributions to
the various trust funds, with interest.
VICTOR’S ROOFING INC.