Flagstaff Masonry, Inc.

264 NLRB No. 174 VFJ D--9406 Flagstaff, AZ UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD FLAGSTAFF MASONRY, INC. and Case 28--CA--6751 INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTSMEN UNION LOCAL NO. 3, AFL--CIO DECISION AND ORDER Upon a charge filed on December 10, 1981, by International Union of Bricklayers and Allied Craftsmen Union Local No. 3, AFL--CIO, herein called the Union, and duly served on Flaggstaff Masonry, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 28, issued a complaint on January 14, 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) and Section 2 (6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and the complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that Respondent violated Section 8 (a) (5) and (1) of the Act by unilaterally refusing to make the required 264 NLRB No. 174 D--9406 payments for the benefit of employees into the trust funds as required by the collective-bargaining agreement between the Union and Respondent. It also alleges that Respondent has failed and refused to pay to unit employees the wages and overtime as required by the aforementioned collective-bargaining agreement. On February 18, 1982, Respondent's counsel filed an answer to the complaint, but by letter dated May 28, 1982, Respondent advised the Regional Director that it was withdrawing its answer to the complaint. It further stated that it no longer wished to contest the allegations of the complaint. On June 14, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 23, 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: 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: D--9406 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. Although Respondent filed an answer, it subsequently withdrew the answer. The withdrawal of an answer necessarily has the same effect as a failure to file an answer and the allegations of the complaint must be deemed admitted as true as if no answer had been filed. No good cause to the contrary having been shown, in accordance with Section 102.20 of the Board's Rules, set out above, the allegations of the complaint are deemed admitted and are found to be true. Accordingly, we shall grant the General Counsel's Motion for Summary Judgment. Findings of Fact 1. The Business of Respondent Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Arizona. At all times material, Respondent has maintained its principal place of business in Flagstaff, D--9406 Arizona, where it is engaged in the building and construction industry as a masonry contractor in the State of Arizona. During the past 12-month period, which period is representative of its operations generally, Respondent, in the course and conduct of its business operations, performed services valued in excess of $50,000 for enterprises, including J. R. Porter Construction, Inc., and Hensel-Phelps, located within the State of Arizona, each of which enterprises purchased and received at their respective Arizona facilities products, goods, and materials valued in excess of $50,000 directly from points outside the State of Arizona. 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 International Union of Bricklayers and Allied Craftsmen Union Local No. 3, 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 journeymen and apprentice brick masons and stove masons employed by the Respondent in the State of Arizona; excluding executives, superintendents, assistant superintendents, civil engineers and their helpers, supervisors, timekeepers, messenger boys, guards, and office workers. D--9406 Since 1965, and at all times material, the Union has been the designated exclusive collective-bargaining representative of the employees in the above-described unit and has been SO recognized by Respondent. Such recognition has been embodied in successive collective-bargaining agreements between the Union and Respondent, the most recent of which was effective by its terms for the period July 1, 1980, through June 30, 1981. Since on or about June 10, 1981, and continuing to date, Respondent has unilaterally failed and refused to make on behalf of the unit employees the required payments to the trust funds as required by the collective-bargaining agreement between the parties. Since on or about September 1, 1981, and continuing to date, the Respondent has unilaterally failed and refused to pay the unit employees the wages, including overtime pay, which are due them and required by the collective-bargaining agreement. We therefore find that by failing to make the trust fund payments and to pay wages and overtime as required by the contract, Respondent has engaged 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 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. D--9406 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 failed to make wages and overtime payments and failed to make payments to trust funds in violation of Section 8 (a) (5) and (1) of the Act. In order to dissipate the effects of this unlawful action, we shall order Respondent to make whole its employees by paying the wages and overtime due them, by making the trust fund payments required by the collective-bargaining agreement, 1 and by reimbursing its employees for any 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 Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1 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 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 (continued) D--9406 Conclusions of Law 1. Flagstaff Masonry, Inc., is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Union of Bricklayers and Allied Craftsmen Union Local No. 3, AFL--CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All journeymen and apprentice brick masons and stove masons employed by the Respondent in the State of Arizona; excluding executives, superintendents, assistant superintendents, civil engineers and their helpers, supervisors, timekeepers, messenger boys, guards, and office workers, constitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. 4. By refusing on or about June 10, 1981, and at all times material thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining represetnative of all the employees of Respondent in the appropriate unit, by unilaterally failing and refusing to make payments to trust funds, and by unilaterally failing and refusing to make the wage and overtime payments, all as required by the collectivebargaining agreement, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 1 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--9406 5. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and its 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, Flagstaff Masonry, Inc., Flagstaff, Arziona, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of Bricklayers and Allied Craftsmen Union Local No. 3, AFL--CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All journeymen and apprentice brick masons and stove masons employed by the Respondent in the State of Arizona; excluding executives, superintendents, assistant superintendents, civil engineers and their helpers, supervisors, timekeepers, messenger boys, guards, and office workers. (b) Unilaterally failing and refusing to make wage and overtime payments to employees and payments to trust funds established by the collective-bargaining agreement. D--9406 5. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and its 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, Flagstaff Masonry, Inc., Flagstaff, Arziona, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of Bricklayers and Allied Craftsmen Union Local No. 3, AFL--CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All journeymen and apprentice brick masons and stove masons employed by the Respondent in the State of Arizona; excluding executives, superintendents, assistant superintendents, civil engineers and their helpers, supervisors, timekeepers, messenger boys, guards, and office workers. (b) Unilaterally failing and refusing to make wage and overtime payments to employees and payments to trust funds established by the collective-bargaining agreement. D--9406 (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the 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) Make whole the employees in the appropriate unit by paying the wages and overtime due them, by transmitting the payments owed to the trust funds pursuant to the terms of its collective-bargaining agreement with the Union, 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. (c) 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 due under the terms of this Order. (d) Post at its Flagstaff, Arizona, place of business copies of the attached notice marked ''Appendix. 2 Copies of 2 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 (continued) 9406 said notice, on forms provided by the Regional Director for Region 28, 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. (e) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Dated, Washington, D.C. September 30, 1982 John R. Van de Water, Chairman John H. Fanning, Member Howard Jenkins, Jr. , Member NATIONAL LABOR RELATIONS BOARD (SEAL) 2 JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. D--9406 WE WILL make whole the employees in the appropriate unit by paying to them the wage and overtime payments as required by the collectivebargaining agreement, 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. FLAGSTAFF MASONRY, INC. (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 Second Floor, 3030 N. Central Avenue, Phoenix, Arizona 85012, Telephone 602--241--2362. D--9406 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 International Union of Bricklayers and Allied Craftsmen Union Local No. 3, AFL--CIO, as the exclusive representative of the employees in the following appropriate unit: All journeymen and apprentice brick masons and stove masons employed by the Respondent in the State of Arizona; excluding executives, superintendents, assistant superintendents, civil engineers and their helpers, supervisors, timekeepers, messenger boys, guards, and office workers. WE WILL NOT fail or refuse unilaterally to make wage and overtime payments to employees or to make payments to trust funds established by the collectivebargaining agreement. 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.