Inabon Asphalt, Inc.

1 325 NLRB No. 50 1 See Maislin Transport, 274 NLRB 529 (1985). 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. Inabon Asphalt, Inc., and Inabon Ready Mix & Inabon Aggregates, Divisions of Empresas Inabon, Inc. and Congreso de Uniones Industriales de Puerto Rico. Cases 24–CA– 7554, 24–CA–7599, and 24–CA–7602 February 6, 1998 DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND BRAME Upon charges and amended charges filed by the Union on October 31, 1996, and February 3, 5, 13, and 14, 1997, the General Counsel of the National Labor Relations Board issued a consolidated complaint (com- plaint) on April 30, 1997, against Inabon Asphalt, Inc. and Inabon Ready Mix & Inabon Aggregates, Divi- sions of Empresas Inabon, Inc., the Respondent, alleg- ing that it has violated Section 8(a)(1) and (5) of the National Labor Relations Act. Subsequently, on June 25, 1997, the Respondent filed an answer to the com- plaint. On October 29, 1997, however, the Respondent withdrew its answer. On December 8, 1997, the General Counsel filed a Motion for Summary Judgment with the Board. On December 11, 1997, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations 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 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 Respondent, on October 29, 1997, with- drew its answer to the complaint. Such a withdrawal has the same effect as a failure to file an answer, i.e., the allegations in the complaint must be considered to be admitted to be true.1 Accordingly, based on the withdrawal of the Re- spondent’s answer to the complaint, we grant the Gen- eral 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 Puerto Rico corporation, with an office and place of business in Barrio Coto Laurel, Ponce, Puerto Rico, has been en- gaged in the construction of roads and the operation of asphalt plants in Puerto Rico. During the 12-month pe- riod preceding issuance of the complaint, the Respond- ent, in conducting its business operations described above, derived gross revenues in excess of $50,000 and purchased and received at its Coto Laurel facility, goods valued at more than $50,000 directly from points outside Puerto Rico. 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 On August 29, 1990, the Union was certified as the exclusive collective-bargaining representative of the employees in the following appropriate unit: INCLUDED: All production and maintenance em- ployees employed by the Employer at its asphalt plant located in Ponce, Puerto Rico, including drivers engaged in production and maintenance related activities. EXCLUDED: All executive, administrative and professional employees, office clerical employees, hatchtenders, purchasers, dispatchers, guards and supervisors as defined in the Act. Since August 29, 1990, based on Section 9(a) of the Act, the Union has been the exclusive collective-bar- gaining representative of the unit. On or about March 19 or July 12, 1996, the Union and the Respondent reached an agreement on terms and conditions of employment of the unit employees to be incorporated in a collective-bargaining agreement to supplant the prior collective-bargaining agreement. Since on or about October 31, 1996, the Union has re- quested that the Respondent meet to finalize and/or execute the agreement described above, but the Re- spondent has failed and refused to do so. Since on or about February 13, 1997, the Respond- ent has failed and refused to bargain with the Union over the effects on the unit employees of the sale of Inabon Asphalt, Inc. and Inabon Ready Mix & Inabon Aggregates. Also since on or about February 13, 1997, the Union has requested, in person and by letter, that 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990). In Transmarine, the Board ordered an employer that had un- lawfully refused to bargain over the effects of its plant closure deci- sion to, inter alia, pay unit employees at their normal rate of pay beginning 5 days after the Board’s decision until the first of four events: (1) an effects bargaining agreement was reached; (2) a bona fide bargaining impasse was reached; (3) the union failed to timely request or commence bargaining; or (4) the union failed to bargain in good faith. Id. The Board further specified that ‘‘in no event shall this sum be less than these employees would have earned for a 2- week period at the rate of their normal wages when last in the Re- spondent’s employ.’’ Id. As the complaint and motion do not allege the actual impact, if any, of the sale of its business on the employees, we shall permit the Respondent to contest the appropriatness of such a Transmarine backpay remedy at the compliance stage. See Creative Woodwork- ing, 313 NLRB 1241 (1994). the Respondent furnish it with a copy of the purchase offer made by the prospective buyer, Robles Asphalt, Inc., which information is necessary for, and relevant to, the Union’s performance of its duties as the exclu- sive collective-bargaining representative of the unit. Since on or about February 13, 1997, the Respondent has failed and refused to furnish the Union with this requested information. In addition, since on or about January 28, 1997, to March 7, 1997, the Respondent subcontracted unit work without notifying the Union about the subcontracting. Further, since on or about August 1, 1996, the Re- spondent has failed and/or refused to make payments to the medical plan provider chosen by the Respond- ent’s employees, in violation of article XIX of the par- ties’ collective-bargaining agreement. As a result, the unit employees are without medical plan coverage. The Respondent, since on or about August 1996, has also failed and refused to meet and discuss grievances, and to process grievances under the grievance and arbitra- tion procedure contained in the collective-bargaining agreement. In addition, since on or about October 1996, the Respondent, in violation of article X of the collective-bargaining agreement, has failed and/or re- fused to pay a lump-sum payment to those unit em- ployees placed on layoff status for a period which ex- ceeded 6 months. Since on or about December 12, 1996, the Respondent has also failed and refused to make the payment due to its employees for a Christ- mas party, in violation of article XVII of the collec- tive-bargaining agreement, and to make the payments due to its employees for Christmas bonuses, in viola- tion of article XVI of the agreement. Finally, since on or about December 15, 1996, the Respondent has failed and refused to pay its employees the amounts due for sick leave accrued but not used, in violation of article XX of the agreement. The Respondent en- gaged in all of this conduct without prior notice to the Union and without affording the Union an opportunity to bargain with respect to this conduct and the effects of this conduct. The terms and conditions of employ- ment set forth above are mandatory subjects for the purposes of collective bargaining. CONCLUSION OF LAW By the acts and conduct described above, the Re- spondent has been failing and refusing to bargain col- lectively with the exclusive collective-bargaining rep- resentative of its employees within the meaning of Section 8(d), 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 with the Union, we shall order the Respondent, on request, to meet with the Union to finalize and/or execute the agreement that the parties reached on or about March 19 or July 12, 1996, on terms and conditions of em- ployment to be incorporated in a collective-bargaining agreement, give retroactive effect to that agreement, and make unit employees whole for any losses attrib- utable to the Respondent’s failure to execute the agree- ment. In addition, having found that the Respondent has failed to bargain with the Union concerning the ef- fects on the unit employees of the sale of Inabon As- phalt, Inc. and Inabon Ready Mix & Inabon Aggre- gates, we shall order the Respondent, on request, to bargain with the Union concerning the effects of its decision to sell its business. In addition, we shall ac- company our bargaining order with a limited backpay requirement designed both to make whole the employ- ees for losses they may have suffered as a result of the failure to bargain about such effects and to recreate in some practicable manner a situation in which the par- ties’ bargaining position is not entirely devoid of eco- nomic consequences for the Respondent. We shall do so by ordering the Respondent to pay backpay to any employees adversely affected by the sale of the busi- ness in a manner similar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968).2 If employees have been terminated as a result of the sale, backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). Further, having found that the Respondent has unlawfully refused to provide the Union with information that is necessary for, and 3 INABON ASPHALT 3 We shall order the Respondent to make whole its unit employees by making all delinquent contributions to this medical plan, includ- ing any additional amounts due the plan in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addition, the Respondent shall reimburse unit employees for any ex- penses ensuing from its failure to make the required payments, as set forth in Kraft Plumbing & Heating, 252 NLRRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). To the extent that an employee has made personal contributions to the medical plan that are accepted by the plan 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 reimbursement will constitute a setoff to the amount that the Respondent otherwise owes the plan. relevant to, its collective-bargaining responsibilities, we shall order the Respondent to furnish the Union with a copy of the purchase offer made by the pro- spective buyer, Robles Asphalt, Inc. Having also found that the Respondent violated Sec- tion 8(a)(5) and (1) by failing to notify the Union prior to subcontracting unit work, we shall order the Re- spondent to notify and bargain with the Union prior to subcontracting unit work and to make employees whole for any losses they may have suffered as a re- sult of the subcontracting of unit work between Janu- ary 28, 1997 and March 7, 1997. In addition, having found that the Respondent has also violated Section 8(a)(5) and (1) by failing to comply with certain provi- sions of the collective-bargaining agreement, specifi- cally, by failing and refusing to (1) make payments to the medical plan provider chosen by the unit employ- ees;3 (2) meet and discuss grievances, and process grievances under the contractual grievance-arbitration procedures; (3) pay a lump-sum payment to those unit employees placed on layoff status for a period which exceeded 6 months; (4) make the payment due to em- ployees for a Christmas party; (5) make the payments due for Christmas bonuses to employees; and (6) pay employees the amounts due for sick leave accrued but not used, we shall order the Respondent to comply with the prior collective-bargaining agreement in these respects and to make whole the unit employees for any losses resulting from its unlawful failure to comply with these contractual provisions. 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 Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Inabon Asphalt, Inc. and Inabon Ready Mix & Inabon Aggregates, Divisions of Empresas Inabon, Inc., Barrio Coto Laurel, Ponce, Puerto Rico, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain in good faith with Congreso de Uniones Industriales de Puerto Rico, as the exclusive representative of the employees in the bargaining unit set forth below by refusing to meet with the Union to finalize and/or execute the agree- ment that the parties reached on or about March 19 or July 12, 1996, on terms and conditions of employment to be incorporated in a collective-bargaining agree- ment. INCLUDED: All production and maintenance em- ployees employed by the Employer at its asphalt plant located in Ponce, Puerto Rico, including drivers engaged in production and maintenance related activities. EXCLUDED: All executive, administrative and professional employees, office clerical employees, hatchtenders, purchasers, dispatchers, guards and supervisors as defined in the Act. (b) Refusing to bargain with the Union concerning the effects on the unit employees of the sale of Inabon Asphalt, Inc. and Inabon Ready Mix & Inabon Aggre- gates. (c) Failing to furnish the Union with a copy of the purchase offer made by the prospective buyer, Robles Asphalt, Inc. (d) Failing to notify the Union prior to subcontract- ing unit work. (e) Failing to make payments to the medical plan provider chosen by the unit employees. (f) Refusing to meet and discuss grievances, and re- fusing to process grievances under the grievance-arbi- tration procedure of the collective-bargaining agree- ment. (g) Failing to pay a lump-sum payment to those unit employees placed on layoff status for a period which exceeded 6 months. (h) Failing to make the payment due for a Christmas party to unit employees. (i) Failing to make the payments due for Christmas bonuses to unit employees. (j) Failing to pay employees the amounts due for sick leave accrued but not used. (k) 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 with the Union to finalize and/or execute the collective-bargaining agreement that the parties reached on or about March 19 or July 12, 1996, give retroactive effect to that agreement, and make the unit employees whole, with interest, for any losses attributable to the Respondent’s failure to exe- cute the agreement, in the manner set forth in the rem- edy section of this decision. (b) On request, bargain with the Union concerning the effects on the unit employees of the sale of Inabon 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 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.’’ Asphalt, Inc. and Inabon Ready Mix & Inabon Aggre- gates. (c) Pay limited backpay to the unit employees in the manner set forth in the remedy section of this decision. (d) Furnish the Union with a copy of the purchase offer made by the prospective buyer, Robles Asphalt, Inc. (e) Notify and bargain with the Union prior to sub- contracting unit work, and make employees whole for any losses they may have suffered as a result of the subcontracting of unit work from January 28, 1997 to March 7, 1997. (f) Make the payments to the medical plan provider chosen by the unit employees, and make employees whole for any losses they may have suffered as a re- sult of the failure to make those payments. (g) On request, meet with the Union and discuss grievances, and process grievances under the griev- ance-arbitration procedure of the collective-bargaining agreement. (h) Pay a lump-sum payment to those unit employ- ees placed on layoff status for a period which ex- ceeded 6 months, as set forth in the remedy section of this decision. (i) Make the payment due for a Christmas party to unit employees. (j) Make the payments due for Christmas bonuses to unit employees, as set forth in the remedy section of this decision. (k) Pay employees the amounts due for sick leave accrued but not used, as set forth in the remedy section of this decision. (l) 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. (m) Within 14 days after service by the Region, post at its facility in Barrio Coto Laurel, Ponce, Puerto Rico, copies of the attached notice marked ‘‘Appen- dix.’’4 Copies of the notice, on forms provided by the Regional Director for Region 24, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive 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. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, 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 Respondent at any time since August 1, 1996. (n) 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. February 6, 1998 llllllllllllllllll Wilma B. Liebman, Member llllllllllllllllll Peter J. Hurtgen, Member llllllllllllllllll J. Robert Brame III, 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 fail and refuse to bargain in good faith with Congreso de Uniones Industriales de Puerto Rico, as the exclusive representative of the employees in the bargaining unit set forth below by refusing to meet with the Union to finalize and/or execute the agreement that we reached with the Union on or about March 19 or July 12, 1996, on terms and conditions of employment to be incorporated in a collective-bar- gaining agreement. INCLUDED: All production and maintenance em- ployees employed by us at our asphalt plant lo- cated in Ponce, Puerto Rico, including drivers en- gaged in production and maintenance related ac- tivities. EXCLUDED: All executive, administrative and professional employees, office clerical employees, hatchtenders, purchasers, dispatchers, guards and supervisors as defined in the Act. WE WILL NOT refuse to bargain with the Union con- cerning the effects on the unit employees of the sale 5 INABON ASPHALT of Inabon Asphalt, Inc. and Inabon Ready Mix & Inabon Aggregates. WE WILL NOT fail to furnish the Union with a copy of the purchase offer made by the prospective buyer, Robles Asphalt, Inc. WE WILL NOT fail to notify the Union prior to sub- contracting unit work. WE WILL NOT fail to make payments to the medical plan provider chosen by the unit employees. WE WILL NOT refuse to meet and discuss grievances, and refuse to process grievances under the grievance- arbitration procedure of the collective-bargaining agreement. WE WILL NOT fail to pay a lump-sum payment to those unit employees placed on layoff status for a pe- riod which exceeded 6 months. WE WILL NOT fail to make the payment due for a Christmas party to unit employees. WE WILL NOT fail to make the payments due for Christmas bonuses to unit employees. WE WILL NOT fail to pay employees the amounts due for sick leave accrued but not used. 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 with the Union to final- ize and/or execute the collective-bargaining agreement that we reached with the Union on or about March 19 or July 12, 1996, give retroactive effect to that agree- ment, and make the unit employees whole, with inter- est, for any losses attributable to our failure to execute the agreement. WE WILL, on request, bargain with the Union con- cerning the effects on the unit employees of the sale of Inabon Asphalt, Inc. and Inabon Ready Mix & Inabon Aggregates. WE WILL pay limited backpay to the unit employees in connection with our failure to bargain with the Union over the sale of our business. WE WILL furnish the Union with a copy of the pur- chase offer made by the prospective buyer, Robles As- phalt, Inc. WE WILL notify and bargain with the Union prior to subcontracting unit work, and WE WILL make employ- ees whole for any losses they may have suffered as a result of our subcontracting of unit work from January 28, 1997 to March 7, 1997. WE WILL make the payments to the medical plan provider chosen by the unit employees, and WE WILL make employees whole for any losses they may have suffered as a result of our failure to make those pay- ments. WE WILL, on request, meet with the Union and dis- cuss grievances, and process grievances under the grievance-arbitration procedure of the collective-bar- gaining agreement. WE WILL pay a lump-sum payment to those unit em- ployees placed on layoff status for a period which ex- ceeded 6 months, with interest. WE WILL make the payment due to unit employees for a Christmas party. WE WILL make the payments due to unit employees for Christmas bonuses, with interest. WE WILL pay employees the amounts due for sick leave accrued but not used, with interest. INABON ASPHALT, INC. AND INABON READY MIX & INABON AGGREGATES, DIVISIONS OF EMPRESAS INABON, INC.