Streator Glass and Mirror Company

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Streator Glass and Mirror Company and Glaziers Architectural Metal and Glass Workers Union 1164. Case 33-CA-5178 June 19, 1981 DECISION AND ORDER Upon a charge filed on December 9, 1980, by Glaziers Architectural Metal and Glass Workers Union 1164, herein the Union, and duly served on Streator Glass and Mirror Company, herein Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 33, issued a complaint on January 15, 1981, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. Re- spondent to date has failed to file an answer to the complaint. With respect to the alleged unfair labor prac- tices, the complaint alleges in substance that Re- spondent has violated and is violating Section 8(a)(5) of the Act by refusing to bargain collective- ly and in good faith with the Union as the exclu- sive collective-bargaining representative of Re- spondent's employees in the appropriate unit be- cause of its failure to honor and abide by the terms of its collective-bargaining contract with the Union. On April 20, 1981, the General Counsel filed di- rectly with the Board a Motion for Summary Judg- ment based upon Respondent's failure to file an answer as required by Section 102.20 of the Board's Rules and Regulations, Series 8, as amend- ed. Subsequently, on April 23, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent has failed to file a response to the Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer there- to. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without 256 NLRB No. 118 knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing duly served on Respondent specifically states that unless an answer to the complaint is filed by Respondent within 10 days of service thereof "all of the allega- tions in said Complaint shall be deemed to be ad- mitted to be true and may be so found by the Board." The complaint issued on January 15, 1981, and an order setting date, time, and place of hear- ing issued on January 19, 1981. According to the Motion for Summary Judgment, certified mail re- ceipts show that these documents were in fact re- ceived by Respondent on January 16 and 21, 1981, respectively. As noted, Respondent has not filed an answer to the complaint, nor did it file a response to the Notice To Show Cause and, therefore, the allega- tions of the General Counsel's Motion for Sum- mary Judgment stand uncontroverted. No good cause to the contrary having been shown, in ac- cordance with the rule set forth above, the allega- tions of the complaint are deemed to be admitted and are found to be true. Accordingly, we grant the Motion for Summary Judgment. FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is now, and has been at all times ma- terial herein, an Illinois corporation with an office and place of business located in Streator, Illinois, where it is engaged in the business of the retail and commercial sale and installation of glass products. Respondent, during the past 12 months, which period is representative of all times material herein, in the course and conduct of its business oper- ations, purchased and caused to be transferred and delivered to its Streator, Illinois, facility goods and materials valued in excess of $50,000 which were transported to said facility directly from States other than the State of Illinois. Respondent, during the past 12 months, had a gross volume of business in excess of $500,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and STREATOR GLASS AND MIRROR COMPANY 733 that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Glazier Architectural Metal and Glass Workers Union 1164 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The following employees of Respondent consti- tute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time glaziers, but excluding all professional employees, office clerical employees, guards, and supervisors as defined in the Act. Since an unknown date in 1970, and at all times since, a majority of the employees of Respondent, in the unit described above, designated and selected the Union as their representative for the purpose of collective bargaining. Since on or about 1971, and at all times material herein, the Union has been the recognized designat- ed collective-bargaining representative of Respond- ent's employees in the above-described unit. Such recognition has been embodied in successive collec- tive-bargaining agreements between Respondent and the Union, the most recent of which is effec- tive by its terms for the period from May 22, 1980, through May 21, 1983. At all times material herein, by virtue of Section 9(a) of the National Labor Relations Act, as amended, the Union has been, and is now, the ex- clusive representative of the employees in the above-described unit for the purposes of collective bargaining with Respondent with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. At all times material herein, the Union has re- quested, and is requesting, Respondent to honor the contract described above and to make all pay- ments due the Union's pension and welfare funds and all payments due to employees in the unit by the terms of said contract. Since on or about June 23, 1980, Respondent has failed and refused to bar- gain in good faith with the Union by the following conduct: (1) since on or about June 23, 1980, Re- spondent has failed and refused to make the re- quired contractual contributions to the Union's In- ternational Pension Fund and to the Illinois State Painters Welfare Fund; (2) since on or about June 23, 1980, Respondent has failed and refused to deduct vacation moneys and union dues and remit said moneys and dues to the appropriate entities as specified in the parties' collective-bargaining agree- ment; (3) since on or about June 23, 1980, Re- spondent has failed and refused to file pension and health and welfare reports with the appropriate en- tities as required by the parties' collective-bargain- ing agreement; and (4) since on or about June 23, 1980, and continuing to date, Respondent has, by the acts described above, repudiated its collective- bargaining agreement with the Union. Accordingly, we find that Respondent, by the conduct described above, since on or about June 23, 1980, and at all times thereafter, has failed and refused, and continues to fail and refuse, to bargain collectively with the Union as the exclusive repre- sentative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close. intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. We shall order Respondent to cease and desist from refusing to bargain with the Union. We shall also order Respondent to cease and desist from re- pudiating its contractual obligation to make certain contractually required payments. We shall further order Respondent to honor its contract with the Union and to make the necessary and contractually required payments.' R Because the provisions of employee benefit fund agreements are ari- able and complex, the Board does not provide at he adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund palnments W' leav e to the compliance stage the question of whether Respondenli mlst pa) and additional amounts into the benefit funds in order ito satisfy our "make-whole" remedy. These additional amounts may be determined, depending upon the circumstances of each case, by reference to prossios n the documenlst go'.erning the funds at issue and, where here are no governing provisions, to evidence of ;an Iass direclly attrihutable toi the unlawful withholding action, which might include the loss of returl on in'estnlmnt of the portion of fund withheld. additional adnlmiustatie costs, etc , hut not collateral losses Merrvnealher Optical ('irompanv. 24) I RB 1213 1 1979) 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Streator Glass and Mirror Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Glaziers Architectural Metal and Glass Work- ers Union 1164 is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time glaziers, but excluding all professional employees, office clerical employees, guards, and supervisors as defined in the Act. 4. Since 1971, the above-named labor organiza- tion has been the exclusive representative of all em- ployees in the aforesaid appropriate unit for the purpose of collective bargaining within the mean- ing of Section 9(a) of the Act. 5. By the acts described in section III, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Streator Glass and Mirror Company, Streator, Illi- nois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Glazier Architectural Metal and Glass Workers Union 1164 concerning rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment, as the exclusive representative of the em- ployees in the following unit: All full-time and regular part-time glaziers, but excluding all professional employees, office clerical employees, guards, and supervisors as defined in the Act. (b) Refusing to bargain collectively with Gla- ziers Architectural Metal and Glass Workers Union 1164 by repudiating its contract with the Union; more specifically, by failing and refusing to make required contributions to the Union's International Pension Fund and to the Illinois State Painters Welfare Fund; by failing and refusing to deduct va- cation moneys and union dues and failing and re- fusing to remit said moneys and dues to the appro- priate entities as specified in the contract; and by failing and refusing to file pension and health and welfare reports with the appropriate entities as specified in the contract. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. (b) Give full force and effect to the parties' col- lective-bargaining agreement and make the Union and other entities specified in the contract whole for any payments withheld but due under the con- tract and make whole any employees who may have suffered losses by the failure and refusal to pay the above-described contractually required benefits. (c) File pension and health and welfare reports with the appropriate entities as specified in the par- ties' collective-bargaining agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, 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 Streator, Illinois, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 33, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 33, in writing, within 20 days from the date of this I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the ords in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcinh an Order of the National Labor Relations Hoard" STREATOR GLASS AND MIRROR COMPANY 735 Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Glaziers Architectural Metal and Glass Workers Union 1164 concerning rates of pays, wages, hours of employment, and other terms and conditions of employment, as the exclusive representative of the employees in the follow- ing unit: All full-time and regular part-time glaziers, but excluding all professional employees, office clerical employees, guards, and super- visors as defined in the Act. WE WILL NOT refuse to bargain collectively with the above-named labor organization by repudiating our contract with that labor orga- nization; more specifically, WE WILL NOT fail and refuse to make contractually required con- tributions to the Union's International Pension Fund and to the Illinois State Painters Welfare Fund; WE WILL NOT fail to refuse to deduct vacation moneys and union dues and WE WILL NOT fail and refuse to remit said moneys and dues to the appropriate entities as specified in our contract with the Union; and WE WILL NOT fail and refuse to file pension and health and welfare reports with the appropriate enti- ties as specified in our contract with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL bargain with the above-named labor organization as the exclusive representa- tive of all employees in the above-described appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. WE WILL give full force and effect to our collective-bargaining agreement with the Union and WE WILL make the Union and other entities specified in the contract whole for any payments due under the contract but withheld by us and WE WILL make whole any employees who may have suffered losses by our failure and refusal to make the above-de- scribed contractually required payments. WE WILL file pension and health and wel- fare reports with the appropriate entities as specified in our contract with the Union. STREATOR GLASS AND MIRROR COM- PANY