M.C. Delta Contracting

1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er­ rors so that corrections can be included in the bound volumes. Barbara Cope, a Sole Proprietor, d/b/a M.C. Delta Contracting, Michael Cope, a Sole Proprietor, d/b/a AB Company and AAR Construction, and d/b/a Gerald Michael Contracting, Inc., alter egos and a single employer and Local 1076, Laborers’ International Union of North America, AFL–CIO. Case 7–CA–33973 December 31, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX Upon a charge and amended charge filed by the Union on December 2, 1992, and January 14, 1993, the General Counsel of the National Labor Relations Board issued an amended complaint (complaint) on February 26, 1993, against Barbara Cope, a Sole Pro­ prietor, d/b/a M.C. Delta Contracting (MC), Michael Cope, a Sole Proprietor, d/b/a AB Company (AB) and AAR Construction (AAR), and d/b/a Gerald Michael Contracting, Inc. (GMC), alter egos and a single em­ ployer, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. Thereafter, on September 30, 1993, the Regional Di­ rector for Region 7 approved a settlement agreement in the proceeding. The settlement provided that ‘‘(a)pproval of this Agreement by the Regional Direc­ tor shall constitute withdrawal of any Complaint(s) and Notice of Hearing heretofore issued in this case, as well as any answer(s) filed in response.’’ Following approval of the settlement agreement, the Regional Director determined that the Respondent had failed to comply fully with the terms of the settlement agreement despite several requests by the Region to do so. On September 5, 1996, the Regional Director there- fore issued and served on the Respondent an order set­ ting aside settlement agreement and reissuing amended complaint. Although properly served copies of the charge, amended charge, and complaint, the Respond­ ent failed to file an answer. On November 27, 1996, the General Counsel filed a Motion for Default Summary Judgment with the Board. On December 2, 1996, 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 response. The allega­ tions in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default 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 Default Summary Judg­ ment disclose that the Region, by letter dated Septem­ ber 30, 1996, notified the Respondent that unless an answer were received by October 14, 1996, a Motion for Default 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 Default Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, Respondent MC, Respondent AB, Respondent AAR, and Respondent GMC have been affiliated business enterprises with common offi­ cers, ownership, directors, management, and super- vision; have formulated and administered a common labor policy; have shared common premises and facili­ ties; have provided services for and made sales to each other; have interchanged personnel with each other; have worked together on jobsites; and have held them- selves out to the public as a single-integrated business enterprise. Based on these operations, Respondents MC, AB, AAR, and GMC (the Respondent) constitute a single-integrated business enterprise and a single em­ ployer within the meaning of the Act. At all material times, AB, AAR, and GMC have been operated as a disguised continuation of MC, and AB, AAR, GMC, and MC are, and have been, alter egos within the meaning of the Act. At all material times the Respondent, with an office and place of business in Clarkston, Michigan, has been engaged in demolition work in the construction indus­ try. During the 1992 calendar year, the Respondent provided services valued in excess of $50,000 to JDS Piping Company, an enterprise within the State of Michigan, which during the same period purchased and received at its Michigan facilities goods valued in ex­ cess of $50,000 directly from points outside the State of Michigan. We find that the Respondent is an em­ ployer 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 meaning of Section 2(5) of the Act. 322 NLRB No. 140 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. ALLEGED UNFAIR LABOR PRACTICES All employees of the Respondent performing labor­ ers work, but excluding guards and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. About June 15, 1992, the Respondent, an employer engaged in the building and construction industry, granted recognition to Local 1076, Laborers’ Inter- national Union of North America, AFL–CIO, as the exclusive collective-bargaining representative of the unit by entering into a collective-bargaining agreement which by its terms had expired on June 1, 1992, and which had been extended day to day pending negotia­ tions of a successor collective-bargaining agreement, and by entering into an interim and supplemental agreement with the Union which by its terms provided that the Respondent agreed to be bound by the terms of a successor collective-bargaining agreement to be negotiated, retroactive to June 1, 1992, without regard to whether the majority status of the Union has ever been established under the provisions of Section 9(a) of the Act. The successor collective-bargaining agree­ ment, effective June 1, 1992, to June 1, 1994, was en­ tered into about July 22, 1992. At all times since June 15, 1992, based on Section 9(a) of the Act, the Union has been the limited exclusive collective-bargaining representative of the unit. The foregoing collective-bargaining agreements pro- vide, inter alia, for the payment of certain contractual wage rates to unit employees and for the monthly pay­ ment by the Respondent of moneys into fringe benefit funds established for the benefit of unit employees of the Respondent. Since about June 15, 1992, the Re­ spondent has failed and refused to pay unit employees contractual wage rates and, since about July 1, 1992, has failed and refused to submit monthly payments into the fringe benefits funds for its unit employees. CONCLUSION OF LAW By the acts and conduct described above, the Re­ spondent has been failing and refusing to bargain col­ lectively with the limited exclusive collective-bargain­ ing representative of its unit employees, and has there- by engaged in unfair labor practices affecting com­ merce within the meaning of Section 8(a)(5) and (1) 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 violated Sec­ tion 8(a)(5) and (1) by failing to pay unit employees contractually required wage rates since June 15, 1992, we shall order the Respondent to make whole its unit employees for any loss of earnings attributable to its unlawful conduct. Backpay shall be computed in ac­ cordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with inter­ est as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Furthermore, having found that the Respondent vio­ lated Section 8(a)(5) and (1) by failing to make con­ tractually required contributions to the fringe benefit funds since July 1, 1992, we shall order the Respond­ ent to make whole its unit employees by making all such delinquent contributions, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addition, the Respondent shall reimburse unit employees for any expenses ensuing from its fail­ ure to make the required contributions, 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, supra, with interest as pre- scribed in New Horizons for the Retarded, supra.1 ORDER The National Labor Relations Board orders that the Respondent, Barbara Cope, a Sole Proprietor, d/b/a M.C. Delta Contracting, Michael Cope, a Sole Propri­ etor, d/b/a AB Company and AAR Construction, and d/b/a Gerald Michael Contracting, Inc., alter egos and a single employer, Clarkston, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing or refusing to bargain with Local 1076, Laborers’ International Union of North America, AFL– CIO as the limited exclusive collective-bargaining rep­ resentative of the following unit employees by failing and refusing to pay its unit employees contractual wage rates or to submit contractually required monthly payments into the fringe benefits funds for its unit em­ ployees: All employees of the Respondent performing la- borers work, but 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. 1 To the extent that an employee has made personal contributions to a fund that are accepted by the fund in lieu of the Respondent’s delinquent contributions during the period of the delinquency, the Respondent will reimburse the employee, but the amount of such re­ imbursement will constitute a setoff to the amount that the Respond­ ent otherwise owes the fund. M.C. DELTA CONTRACTING 3 (a) Make whole its unit employees by paying them for any loss of earnings attributable to its failure to pay contractual wage rates since June 15, 1992, and by making all contractually required delinquent contribu­ tions to the fringe benefit funds which it failed to make since July 1, 1992, in the manner set forth in the remedy section of this decision. (b) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security pay­ ment records, timecards, personnel records and reports, and all other records 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 Clarkston, Michigan, copies of the at­ tached notice marked ‘‘Appendix.’’2 Copies of the no­ tice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s au­ thorized representative, shall be posted by the Re­ spondent 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 no­ tices are not altered, 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 facility involved in these pro­ ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re­ spondent at any time since December 2, 1992. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 31, 1996 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Margaret A. Browning, Member llllllllllllllllll Sarah M. Fox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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.’’ 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 or refuse to bargain with Local 1076, Laborers’ International Union of North America, AFL–CIO as the limited exclusive collective-bargain­ ing representative of the following unit employees by failing and refusing to pay our unit employees contrac­ tual wage rates or to submit contractually required monthly payments into the fringe benefits funds for them. All employees of the Employer performing labor­ ers work, but excluding guards and supervisors as defined in the Act. 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 make whole our unit employees by paying them for any loss of earnings attributable to our failure to pay contractual wage rates since June 15, 1992, and by making all contractually required delinquent con­ tributions to the fringe benefit funds which we failed to make since July 1, 1992, with interest. BARBARA COPE, A SOLE PROPRIETOR, D/B/A M.C. DELTA CONTRACTING, MI­ CHAEL COPE, A SOLE PROPRIETOR, D/B/A AB COMPANY AND AAR CON­ STRUCTION, AND D/B/A GERALD MI­ CHAEL CONTRACTING, INC., ALTER EGOS AND A SINGLE EMPLOYER