S&J Concrete, Inc.

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. S&J Concrete, Incorporated and Teamsters Local Union No. 682, affiliated with the International Brotherhood of Teamsters, AFL–CIO. Case 14– CA–23644 October 21, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Upon a charge filed by the Union on June 12, 1995, the General Counsel of the National Labor Relations Board issued a complaint on October 5, 1995, against S&J Concrete, Incorporated, the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the Na­ tional Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent failed to file an answer. Thereafter, on January 8, 1996, the Regional Direc­ tor for Region 14 approved an informal settlement agreement entered into by the Respondent and the Union disposing of the allegations in the complaint. However, on February 22, 1996, the Regional Director issued an order revoking the settlement and an amend­ ed complaint alleging that the Respondent has violated Section 8(a)(1) and (5) of the National Labor Relations Act. Although properly served copies of the charge and the amended complaint, the Respondent failed to file an answer. Thereafter, the parties entered into a second informal settlement agreement, approved by the Regional Direc­ tor on April 4, 1996, disposing of the allegations of the amended complaint. However, on August 16, 1996, the Union filed an amended charge alleging various 8(a)(1) and (5) violations. On the charge and amended charge, the General Counsel of the National Labor Relations Board issued a second order revoking settlement, and second amend­ ed complaint on August 20, 1996, against S&J Con­ crete, Incorporated, the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the National Labor Relations Act. Although properly served copies of the charge, amended charge, and second amended com­ plaint, the Respondent failed to file an answer. On September 23, 1996, the General Counsel filed a Motion for Default Summary Judgment with the Board. On September 25, 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 a com­ plaint 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, amended complaint, and second amended complaint af­ firmatively note that unless an answer is filed within 14 days of service, all the allegations in the respective complaint will be considered admitted. Further, the un­ disputed allegations in the Motion for Default Sum­ mary Judgment disclose that the Region, by letter dated September 4, 1996, notified the Respondent that unless an answer were received by September 9, 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, the Respondent, a Missouri corporation, with an office and place of business in St. Louis, Missouri, has been engaged in the nonretail sale of concrete ready mix. During the 12-month period ending July 31, 1996, the Respondent, in conducting its business operations, purchased and received at its St. Louis, Missouri facility goods valued in excess of $50,000 from other enterprises, located within the State of Missouri, each of which other enterprises had received these goods directly from points outside the State of Missouri. We find that the Respondent 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 meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent con­ stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All drivers employed by the Respondent at its St. Louis, Missouri facility EXCLUDING all office clerical and professional employees, guards, and supervisors as defined in the Act. On August 30, 1993, the Union was certified as the exclusive collective-bargaining representative of the unit. At all times since that date, based on Section 9(a) 322 NLRB No. 63 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the Act, the Union has been the exclusive collec­ tive-bargaining representative of the unit. On February 15, 1995, the Respondent and the Union met for the purposes of collective bargaining with respect to wages, hours, and other terms and con­ ditions of employment. During this meeting the Re­ spondent advised the Union that the Respondent would not sign any collective-bargaining agreement with the Union until it had a batch plant of its own. About January 9, 1996, the Respondent and the Union scheduled a meeting at the Respondent’s facility on January 11, 1996, for the purposes of collective bargaining. About January 11, 1996, the Respondent failed to appear for the meeting with the Union. From January 11 through about April 1, 1996, the Respond­ ent failed and refused to meet with the Union for the purposes of collective bargaining. About June 13, 1996, the Union and the Respondent reached complete agreement on the terms and condi­ tions of employment of the unit to be incorporated into a collective-bargaining agreement. Since about July 1, 1996, the Union has requested that the Respondent execute a written contract containing this agreement, but since that date the Respondent has failed and re- fused to do so. CONCLUSION OF LAW By the acts and conduct described above, the Re­ spondent has been failing and refusing to bargain col­ lectively and in good faith with the exclusive collec­ tive-bargaining representative of its employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) 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 meet and bargain with the Union and to execute the collective-bargain­ ing agreement reached by the parties about June 13, 1996, we shall order the Respondent to execute the agreement, give retroactive effect to that agreement, and make the unit employees whole for any losses at­ tributable to the Respondent’s failure to execute and implement the agreement. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Re­ tarded, 283 NLRB 1171 (1987). ORDER The National Labor Relations Board orders that the Respondent, S&J Concrete, Incorporated, St. Louis, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Advising Teamsters Local Union No. 682, affili­ ated with the International Brotherhood of Teamsters, AFL–CIO that it will not sign any collective-bargain­ ing agreement with the Union until the Respondent has a batch plant of its own. (b) Failing or refusing to meet with the Union for the purposes of collective bargaining with respect to wages, hours, and other terms and conditions of em­ ployment of the unit: All drivers employed by the Respondent at its St. Louis, Missouri facility EXCLUDING all office clerical and professional employees, guards, and supervisors as defined in the Act. (c) Refusing to execute a written contract containing the terms of the agreement reached by the parties. (d) 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, meet and bargain in good faith with the Union as the exclusive collective-bargaining rep­ resentative of the employees in the unit. (b) Execute the collective-bargaining agreement reached by the parties about June 13, 1996, give retro­ active effect to that agreement, and make the unit em­ ployees whole for any losses attributable to the Re­ spondent’s failure to execute and implement the agree­ ment in the manner set forth in the remedy section of this decision. (c) 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. (d) Within 14 days after service by the Region, post at its facility in St. Louis, Missouri, copies of the at­ tached notice marked ‘‘Appendix.’’1 Copies of the no­ tice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent’s au­ thorized representative, shall be posted by the Re­ spondent and maintained for 60 consecutive days in 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.’’ S&J CONCRETE, INC. 3 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 June 12, 1995. (e) 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. October 21, 1996 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins Jr., Member (SEAL) 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 advise Teamsters Local Union No. 682, affiliated with the International Brotherhood of Teamsters, AFL–CIO that we will not sign any collec­ tive-bargaining agreement with them until we have a batch plant of our own. WE WILL NOT fail or refuse to meet with the Union for the purposes of collective bargaining with respect to wages, hours, and other terms and conditions of em­ ployment of our unit employees: All drivers employed by the Employer at its St. Louis, Missouri facility EXCLUDING all office clerical and professional employees, guards, and supervisors as defined in the Act. WE WILL NOT refuse to execute a written contract containing the terms of the agreement reached with the Union. 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, meet and bargain with the Union as the exclusive collective-bargaining represent­ ative of the employees in the unit. WE WILL execute the collective-bargaining agree­ ment reached with the Union about June 13, 1996, give retroactive effect to that agreement, and make our unit employees whole for any losses attributable to our failure to execute and implement the agreement, in the manner set forth in a decision of the National Labor Relations Board. S&J CONCRETE, INCORPORATED