Harding, Donald Eugene, d/b/a Uniform Flagging of Oregon

264 NLRB No. 167 VJH 9401 Eugene, OR UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DONALD EUGENE HARDING d/b/a UNIFORM FLAGGING OF OREGON and OREGON, SOUTHERN IDAHO, WYOMING & UTAH DISTRICT COUNCIL OF LABORERS, LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL--CIO Case 36--CA-4095 DECISION AND ORDER Upon a charge filed on March 11, 1982, by Oregon, Southern Idaho, Wyoming & Utah District Council of Laborers, Laborers' International Union of North America, AFL--CIO, herein called the Union, and duly served on Donald Eugene Harding d/b/a Uniform Flagging of Oregon, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 19, issued a complaint on April 30, 1982, 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), Section 8(d), 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. Respondent filed no answer to the complaint. 264 NLRB No. 167 D--9401 With respect to the unfair labor practices, the complaint alleges in substance that Respondent violated Section 8 (a) (5) and (1) and Section 8 (d) of the Act by unilaterally canceling its contract with the Union, including the vacation trust, training, health and welfare, and pension trust provisions thereof, and by refusing to make the prescribed monetary contributions to the trust funds as required by the collective-bargaining agreement. On June 14, 1982, the General Counsel directed a letter to Respondent which served notice on it that a motion for summary judgment would be filed if an answer were not received by June 21, 1982. On June 18, 1982, the Officer-in-Charge of Subregion 26 extended the time for filing an answer to June 28, 1982. Respondent filed no answer to the complaint. On July 8, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 14, 1982, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed no response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a threemember panel. Upon the entire record in this proceeding, the Board makes the following: D--9401 Ruling on the Motion for Summary Judgment Section 102.20 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without 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 served on Respondent stated that, unless an answer was filed within 10 days from the service thereof, ''all of the allegations in the complaint shall be deemed to be admitted true and may be SO found by the Board. As noted above, Respondent has not filed any answer to the complaint, nor has it responded to the Notice To Show Cause. No good cause to the contrary having been shown, in accordance with the rule set forth above, the allegations of the complaint are deemed admitted and found to be true. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: Findings of Fact I. The Business of Respondent Respondent is, and has been at all times material herein, a sole proprietorship and maintains its principal office and place of business in Eugene, Oregon, where it is engaged in the 9401 construction industry as a contractor providing flagging, pilot car, and highway safety services on road construction and improvement projects During the past year, which period is representative of all times material herein, Respondent, in the course and conduct of its operations described above, provided services valued in excess of $50,000 for other enterprises within the State of Oregon, including J. C. Compton Company, which enterprises are directly engaged in interstate commerce. We find, on the basis of the foregoing, that Respondent 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 that it will effectuate the policies of the Act to assert jurisdiction herein. II. The Labor Organization Involved Oregon, Southern Idaho, Wyoming & Utah District Council of Laborers, Laborers' International Union of North America, AFL-- CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. The Unfair Labor Practices The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9 (b) of the Act: All laborers covered by the collective bargaining agreement between Respondent and the Union, excluding office clerical employees, guards and supervisors as defined in the Act, and all other employees. Respondent and the Union entered into a short-form collective-bargaining agreement on February 12, 1981, binding D--9401 Respondent to the terms of the Master Labor Agreement between Oregon-Columbia Chapter, Associated General Contractors of America, Inc., and the Union, which by its terms expires May 31, 1983. At all times material herein, the Union has been the exclusive collective-bargaining representative of the employees in the above-described unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Since on or about October 15, 1981, Respondent has failed and refused to continue in full force and effect all the terms and conditions of the collective-bargaining agreement by uilaterally canceling the contract, including the vacation trust, training, health and welfare, and pension trust provisions, and by unilaterally ceasing to make the prescribed monetary contributions to the trust funds. 1 We therefore find that by canceling the contract and by failing to make monetary trust fund contributions, Respondent has refused to bargain with the Union as the exclusive representative of its employees in the appropriate unit and has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) and Section 8 (d) of the Act. 1 Although the complaint refers to these events as occurring ''on or about October 15, 1982,'' we find this to be a clear inadvertent error, inasmuch as the complaint issued on April 30, 1982. D--9401 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 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 effectuate the policies of the Act. We have found that Respondent canceled its contract with the Union and failed to make prescribed monetary contributions to the trust funds in violation of Section 8 (a) (5) and (1) and Section 8 (d) of the Act. In order to dissipate the effects of this unlawful action, we shall order Respondent to make whole its employees by paying them backpay for any loss of wages and other benefits which resulted from Respondent's unfair labor practices, by making the trust fund payments required by the collectivebargaining agreement, 2 and by reimbursing its employees for any 2 Because the provisions of employee benefit fund agreements are variable and complex, the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments. We leave to the compliance stage the question (continued) D--9401 expenses ensuing from Respondent's unlawful failure to make such required payments as set forth in Kraft Plumbing and Heating, Inc., 252 NLRB 891, fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). All payments to employees shall be made with interest as prescribed in Flordia Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Conclusions of Law 1. Donald Eugene Harding d/b/a Uniform Flagging of Oregon is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Oregon, Southern Idaho, Wyoming & Utah District Council of Laborers, Laborers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All laborers covered by the collective-bargaining agreement between Respondent and the Union, excluding office clerical employees, guards and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2 of whether Respondent must pay any additional amounts into the benefit funds in order to satisfy our ''make-whole"" remedy. These additional amounts may be determined, depending upon the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions, to evidence of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld, additional administrative costs, etc., but not collateral losses. Merryweather Optical Company, 240 NLRB 1213 (1979). D--9401 4. By refusing on or about October 15, 1981, and at all times material thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, by unilaterally canceling its contract with the Union, including the vacation trust, training, health and welfare, and pension trust provisions, and by unilaterally ceasing to make monetary contributions to trust funds, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and Section 8 (d) of the Act. 5. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (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 Relations Board hereby orders that the Respondent, Donald Eugene Harding d/b/a Uniform Flagging of Oregon, Eugene, Oregon, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: D--9401 (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Oregon, Southern Idaho, Wyoming & Utah District Council of Laborers, Laborers' International Union of North America, AFL-- CIO, as the exclusive bargaining representative of its employees inthe following appropriate unit: All laborers covered by the collective bargaining agreement between Respondent and the Union, excluding office clerical employees, guards and supervisors as defined in the Act, and all other employees. (b) Unilaterally canceling its contract with the Union and ceasing to make the prescribed monetary contributions to the trust funds. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them in 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) Honor, abide by, and apply the terms of the existing collective-bargaining agreement between it and the Union. (c) Make whole the employees in the appropriate unit by paying them backpay for any loss of wages and other benfits resulting from Respondent's unfair labor practices, by transmitting the payments owed to the trust funds, pursuant to the terms of its collective-bargaining agreement with the Union, 9401 and by reimbursing unit employees for any expenses ensuing from Respondent's unlawful failure to make such required payments, in the manner set forth in the section of this Decision entitled 'The Remedy. (d) Preserve and, upon request, make available to the Board or-its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (e) Post at its Eugene, Oregon, place of business copies of the attached notice marked ''Appendix. 113 Copies of said notice, on forms provided by the Regional Director for Region 19, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. 3 In the event that 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 D 9401 (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Dated, Washington, D.C. September 30, 1982 John R. Van de Water, Chairman Howard Jenkins, Jr. , Member Robert P. Hunter, Member NATIONAL LABOR RELATIONS BOARD (SEAL) D--9401 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 concerning rates of pay, wages, hours, and other terms and conditions of employment with Oregon, Southern Idaho, Wyoming & Utah District Council of Laborers, Laborers' International Union of North America, AFL-- CIO, as the exclusive representative of the employees in the following appropriate unit: All laborers covered by the collective bargaining agreement between us and the Union, but excluding office clerical employees, guards and supervisors as defined in the Act and all other employees. WE WILL NOT unilaterally cancel our contract with the Union and cease to make the prescribed monetary contributions to the trust funds. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the abovenamed Union, as the exclusive representative of all employees in the bargaining unit described above, with respect to rates of pay, wages, hours, and other terms and conditions of employment. WE WILL honor, abide by, and apply the terms of the existing collective-bargaining agreement with the Union. D--9401 WE WILL make whole the employees in the appropriate unit by paying them backpay for any loss of wages and other benefits resulting from our unfair labor practices, by transmitting the payments owed to the trust funds pursuant to the terms of our collective-bargaining agreement with the Union, and by reimbursing unit employees, plus interest, for any expenses ensuing from our unlawful failure to make such required payments. DONALD EUGENE HARDING d/b/a UNIFORM FLAGGING OF OREGON (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 2948, 915 Second Avenue, Seattle, Washington 98174, Telephone 206--442--7472.