Mason Contractors Association of Southeast Missouri

342 NLRB No. 73 Mason Contractors Association of Southeast Missouri and International Union of Bricklayers and Al- lied Craftworkers Local Union No. 23, AFL– CIO. Case 14–CA–27724 July 30, 2004 DECISION AND ORDER BY MEMBERS SCHAUMBER, WALSH AND MEISBURG The General Counsel seeks a default judgment in this case on the ground that the Respondent has withdrawn its answer to the complaint. Upon a charge filed by the Un- ion on January 16, 2004, the General Counsel issued the complaint on March 22, 2004, against Mason Contrac- tors Association of Southeast Missouri, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Act. The Respondent filed an answer to the complaint. On April 28, 2004, however, the Respondent withdrew its answer. On May 4, 2004, the General Counsel filed a Motion for Default Judgment with the Board. On June 30, 2004, 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 Default 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. In addition, the complaint affirmatively stated that unless an answer was filed by April 5, 2004, all the allegations in the complaint would be considered admit- ted. On April 2, 2004, the Respondent filed an answer to the complaint. On April 28, 2004, however, the Respon- dent withdrew its answer. The withdrawal of an answer has the same effect as a failure to file an answer, i.e., the allegations in the complaint must be considered to be true.1 Accordingly, we grant the General Counsel’s Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been an or- ganization composed of various employers engaged in 1 See Maislin Transport, 274 NLRB 529 (1985). the building and construction industry as masonry con- tractors, one purpose of which is to represent its em- ployer-members in negotiating and administering collec- tive-bargaining agreements with the Union. At all material times, Foeste Masonry, Ste. Genevieve Building and Stone, Eddings Masonry, LT Masonry, and Propst Masonry have been employer-members of the Respondent and have authorized the Respondent to rep- resent them in negotiating and administering collective- bargaining agreements with the Union. During the 12-month period ending February 29, 2004, employer-members of the Respondent, in conducting their business operations described above, collectively purchased and received at their Southeastern Missouri facilities goods valued in excess of $50,000 directly from points outside the State of Missouri. We find that, at all material times, the employer- members of the Respondent have been an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. We also find that International Union of Bricklayers and Allied Craftworkers Local Un- ion No. 23, AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals held the positions set forth opposite their respective names and have been supervisors of employer-members of the Respondent within the meaning of Section 2(11) of the Act and agents of employer-members of the Respondent within the meaning of Section 2(13) of the Act: Kenny Foeste - President of Association and Negotiating Committee Mem- ber, Foeste Masonry Tim Uding - Negotiating Committee Mem- ber, Ste. Genevieve Building and Stone Matt Eddings - Negotiating Committee Mem- ber, Eddings Masonry Dale Propst - Negotiating Committee Mem- ber, Propst Masonry The unit of employees of the Respondent (the Associa- tion Unit) set forth in the collective-bargaining agree- ment described below constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Since about the 1960’s, and at all material times, the Union has been the designated exclusive collective- bargaining representative of the Association Unit, and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 since then the Union has been recognized as the repre- sentative by the Respondent. This recognition has been embodied in successive collective-bargaining agree- ments, the most recent of which was effective from May 16, 1999 through May 15, 2002. At all times since the 1960’s, based on Section 9(a) of the Act, the Union has been the exclusive collective- bargaining representative of the Association Unit. On about December 22, 2003, the Union and the Re- spondent reached complete agreement on terms and con- ditions of employment of the Association Unit to be in- corporated into a collective-bargaining agreement. Since about December 22, 2003, the Union has re- quested that the Respondent execute a written contract containing the agreement described above. Since about January 15, 2004, the Respondent has failed and refused to execute the agreement. CONCLUSION OF LAW By failing and refusing to execute the agreement, the Respondent has failed and refused to bargain collectively and in good faith with the exclusive collective- bargaining representative of its employees, in violation of Section 8(a)(5) and (1) of the Act. The Respondent’s unfair labor practices affect commerce within the mean- ing of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain 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. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1) by failing since January 15, 2004, to execute a written contract containing the agreement reached on December 22, 2003, we shall order the Respondent to execute the agreement and give retroactive effect to its terms. We shall also order the Respondent to make whole the unit employees for any losses attributable to its failure to execute the agreement, as set forth in Ogle Pro- tection Service, 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). ORDER The National Labor Relations Board orders that the Respondent, Mason Contractors Association of Southeast Missouri, Cape Girardeau, Missouri, its officers, agents, successors, and assigns, shall 1.Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with International Union of Bricklayers and Allied Craftworkers Local Union No. 23, AFL–CIO, as the exclusive collective-bargaining representative for the Association Unit, by failing and refusing to execute a written contract containing the complete agreement reached with the Union regarding the terms and condi- tions of employment of unit employees. (b) 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. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Execute and implement a written contract contain- ing the agreement reached by the Respondent and the Union on December 22, 2003, containing terms and con- ditions of employment, give retroactive effect to the agreement, and make unit employees whole for any loss of earnings and other benefits they have suffered as a result of the Respondent’s failure to execute the agree- ment, with interest, as set forth in the remedy section of this Decision. (b) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (c) Within 14 days after service by the Region, post at its facility in Cape Girardeau, Missouri, copies of the attached notice marked “Appendix.”2 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 14, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent 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 al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since January 15, 2004. 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” MASON CONTRACTORS ASSOCIATION OF SOUTHEAST MISSOURI 3 (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to com- ply. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to bargain collectively and in good faith with International Union of Bricklayers and Allied Craftworkers Local Union No. 23, AFL–CIO, as the exclusive collective-bargaining representative of our employees in the Association Unit by failing and refus- ing to execute a written contract containing the complete agreement reached with the Union regarding the terms and conditions of employment of unit 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 execute and implement a written contract containing the agreement reached by us and the Union on December 22, 2003, containing terms and conditions of employment, WE WILL give retroactive effect to that agreement, and WE WILL make unit employees whole for any loss of earnings and other benefits they have suffered as a result of our failure to execute the agreement, with interest. MASON CONTRACTORS ASSOCIATION OF SOUTHEAST MISSOURI