Urban Excavating Company

264 NLRB No. 41 VJH D--9297 Saginaw, MI UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD URBAN EXCAVATING COMPANY and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 324, 324--A, 324--B, 324--C, 324--D, AFL--CIO Case 7--CA-20179 DECISION AND ORDER Upon a charge filed on January 6, 1982, by International Union of Operating Engineers, Local 324, 324--A, 324--B, 324--C, 324--D, AFL--CIO, herein called the Union, and duly served on Urban Excavating Company, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on February 25, 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 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. With respect to the unfair labor practices, the complaint alleges in substance that Respondent violated Section 8 (a) (5) and 264 NLRB No. 41 D--9297 (1) of the Act by refusing to make the required payments for the benefit of employees into the fringe benefit funds as required by the collective-bargaining agreement between the Union and Respondent. It also alleges that Respondent has failed and refused to allow an audit of its books and records to verify compliance with Respondent's obligation to make payments into the fringe benefit funds, which audit is authorized under the aforementioned collective-bargaining agreement. On March 16, 1982, the General Counsel directed a letter to Respondent which served notice on it that it had not filed an answer to the complaint and that it should do SO. There was no response by Respondent to this letter. On April 29, 1982, counsel for the General Counsel filed directly with the Board a Motion for Default Judgment. Subsequently, on May 5, 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 Default 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--9297 Ruling on the Motion for Default 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 Default 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 corporation duly organized under, and existing by virtue of, the laws of the State of Michigan. At all times material Respondent -9297 has maintained its principal place of business in Saginaw, Michigan, where it is engaged in the performance of excavating and related construction services. During the year ending December 31, 1981, which period is representative of its operations during all times material herein, Respondent, in the course and conduct of its business operations, received gross revenues in excess of $230,000. During the same period of time, Respondent, in the course and conduct of its business operations, provided excavating and other related construction services valued in excess of $200,000 to Alfred Pumford and Sons, Inc., a general contractor located in Saginaw, Michigan. During the same period of time, Alfred Pumford and Sons, Inc., was a member in good standing of the Lansing Chapter, Associated General Contractors Association, a multiemployer collective-bargaining association, over which member employers the National Labor Relations Board has asserted jurisdiction on $50,000 annual, nonretail, direct inflow and outflow jurisdictional standards, including Pearson Construction Company of Benton Harbor, Michigan, and Christman Construction Company of Lansing, Michigan. 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. D--9297 II. The Labor Organization Involved International Union of Operating Engineers, Local 324, 324-- A, 324--B, 324--C, 324--D, 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 employees engaged in underground excavation and related work, employed by Respondent at its 3761 Wolf Road, Saginaw, Michigan facility, but excluding guards and supervisors as defined in the Act. At all times since July 24, 1980, by virtue of successive collective-bargaining agreements between the Union and Respondent, the Union has been the exclusive collectivebargaining 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. The collective-bargaining agreement currently in effect between the Union and Respondent which by its terms expires on September 1, 1983, provides, inter alia, for the remittance by Respondent of payments into certain fringe benefit funds, including health care, pension, retiree benefit, vacation, apprentice, and advancement or promotion, established for the benefit of employees of Respondent. Since on or about July 6, 1981, Respondent has failed and refused to make full and proper fringe benefit fund payments as required by the collective-bargaining agreement. D--9297 Since on or about December 9, 1981, Respondent has failed and refused to honor the Union's request, by its letter dated December 9, 1981, to allow an audit of its books and records to verify compliance with Respondent's obligation to make payments into the fringe benefit funds, which audit is authorized under article 4, section 7, of the aforementioned collective-bargaining agreement. We therefore find that, by failing to make the fringe benefit funds payments and to permit the audit as required by its contract with the Union, 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) of the Act. 1 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. 1 As noted above, the complaint alleges that Respondent has violated the Act by failing to make contractually mandated fringe benefit payments to various funds, including an advancement or promotion" fund. It is not clear from the record whether the fund involved here is an industry advancement or promotion fund. In the event that it is such a fund, Respondent's cessation of payments into that fund would not violate Sec. 8 (a) (5) of the Act and an order requiring Respondent to make payments into the fund would be improper. See Finger Lakes Plumbing & Heating Co., Inc., 254 NLRB 1399 (1981), and Fox Painting Company, 263 NLRB No. 71 (1982). We shall leave this matter to the compliance stage of this proceeding. D--9297 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 payments to fringe benefit 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 making the fringe benefit fund payments required by the collective-bargaining agreement 2 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 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 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--9297 NLRB 651 (1977) See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962) 3 In addition, we shall order Respondent to permit the audit requested by the Union. Conclusions of Law 1. Urban Excavating Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 324, 324--A, 324--B, 324--C, 324--D, AFL--CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All employees engaged in underground excavation and related work employed by Respondent at its 3761 Wolf Road, Saginaw, Michigan, facility, but excluding guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. By refusing on or about July 6, 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 failing and refusing to make payments to and to permit the audit requested by the Union concerning fringe benefit funds, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering 3 Member Jenkins would compute interest in accordance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). D--9297 NLRB 651 - (1977) See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962) 3 In addition, we shall order Respondent to permit the audit requested by the Union. Conclusions of Law 1. Urban Excavating Company is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Union of Operating Engineers, Local 324, 324--A, 324--B, 324--C, 324--D, AFL--CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All employees engaged in underground excavation and related work employed by Respondent at its 3761 Wolf Road, Saginaw, Michigan, facility, but excluding guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. By refusing on or about July 6, 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 failing and refusing to make payments to and to permit the audit requested by the Union concerning fringe benefit funds, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering 3 Member Jenkins would compute interest in accordance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). D--9297 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, Urban Excavating Company, Saginaw, Michigan, 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 Operating Engineers, Local 324, 324-- A, 324--B, 324--C, 324--D, AFL--CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees engaged in underground excavation and related work, employed by Respondent at its 3761 Wolf Road, Saginaw, Michigan facility, but excluding guards and supervisors as defined in the Act. (b) Failing and refusing to make payments to and to permit the audit requested by the Union concerning fringe benefit funds established by the collective-bargaining agreement. (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. D--9297 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 transmitting the payments owed to the fringe benefit 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 and Order entitled 'The Remedy. (c) Permit the audit requested by the Union concerning such funds. (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 due under the terms of this Order. (e) Post at its Saginaw, Michigan, place of business copies of the attached notice marked ''Appendix. Copies of said 4 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--9297 notice, on forms provided by the Regional Director for Region 7, 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. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Dated, Washington, D.C. September 29, 1982 John R. Van de Water, Chairman Howard Jenkins, Jr., Member Robert P. Hunter, Member NATIONAL LABOR RELATIONS BOARD (SEAL) D--9297 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 Operating Engineers, Local 324, 324--A, 324--B, 324--C, 324--D, AFL--CIO, as the exclusive representative of the employees in the following appropriate unit: All employees engaged in underground excavation and related work, employed at our 3761 Wolf Road, Saginaw, Michigan facility, but excluding guards and supervisors as defined in the Act. WE WILL NOT refuse to make payments to and permit an audit concerning fringe benefit funds established by the collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of 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. 9297 WE WILL make whole the employees in the appropriate unit by transmitting the payments owed to the fringe benefit 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. WE WILL permit the audit requested by the Union. URBAN EXCAVATING COMPANY (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, Patrick V. McNamara Federal Building, Room 300, 477 Michigan Avenue, Detroit, Michigan 48226, Telephone 313--226-- 3244.