American Industries

61 313 NLRB No. 24 AMERICAN INDUSTRIES 1 Caribe Cleaning Services, 304 NLRB 932 (1991), is distinguish- able. There, unlike here, the answer to the original complaint denied its substantive allegations. American Industries of Indiana, Inc. and Southwest Ohio District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL–CIO. Cases 9–CA–29630 and 9– CA–29839 November 22, 1993 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH Upon charges filed by the Union in Case 9–CA– 29630 on June 1, 1992, and in Case 9–CA–29839 on August 6, the General Counsel of the National Labor Relations Board issued complaints against American Industries of Indiana, Inc., the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The first complaint issued July 14. On July 31, the Respondent filed an answer admitting in part and denying in part the allegations of the initial complaint. On September 22, 1992, the General Counsel issued a consolidated complaint. On June 23, 1993, the Gen- eral Counsel notified the Respondent, in writing, of its obligation to file an answer to the consolidated com- plaint and advised the Respondent that unless its an- swer was received by close of business on June 30, 1993, the General Counsel would file a Motion for Summary Judgment with the Board. The Respondent failed to file an answer to the consolidated complaint with the Board. On July 23, 1993, the General Counsel filed a Mo- tion for Summary Judgment with exhibits and a sup- porting memorandum attached. On August 4, 1993, 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 re- sponse. The allegations in the motion are therefore un- disputed. Ruling on Motion for Summary Judgment The Respondent’s answer to the initial complaint ad- mits all substantive facts necessary to establish the un- fair labor practices alleged. The consolidated complaint served on the Respondent specifically stated that un- less an answer was filed within 14 days of service, ‘‘All of the allegations of the complaint shall be deemed to be admitted to be true and shall be so found by the Board.’’ Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide that the allega- tions in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. The Respond- ent did not file an answer to the consolidated com- plaint within the required time, nor did it request an extension of time in which to file an answer. In addi- tion, the Respondent was advised in writing that unless an answer to the consolidated complaint was filed, a Motion for Summary Judgment would ensue. The Re- spondent has continued to fail to file an answer to the consolidated complaint or a response to the Board’s Notice to Show Cause why summary judgment should not be granted. As the Respondent’s answer to the initial complaint admits all substantive facts necessary to establish the unfair labor practices alleged and does not raise any litigable issues, and as the Respondent has failed to file an answer to the consolidated complaint as re- quired by the Board’s Rules and has failed to show good cause why it has not done so, we grant the Gen- eral Counsel’s Motion for Summary Judgment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Hamilton, Ohio, has been engaged as a contractor in the con- struction industry performing drywall, metal stud, and acoustical ceiling construction. During the 12-month period preceding issuance of the consolidated com- plaint, the Respondent, in conducting its business oper- ations, purchased and received goods valued in excess of $50,000 directly from points outside the State of Ohio. We find that the Respondent is an employer en- gaged 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 an appropriate unit for purposes of collective bargaining under Section 9(b) of the Act: All carpenters in the employ of Respondent, ex- cluding all other employees and all guards and su- pervisors within the meaning of the Act. In 1989, the Respondent granted recognition to the Union pursuant to Section 8(f) of the Act and entered into a collective-bargaining agreement with the Union. This agreement was effective from June 1, 1989, to June 1, 1992. From February 1 through June 1, 1992, the Respondent failed to continue in effect all the terms and conditions of employment of this agreement by failing to remit to the Union, on behalf of the unit employees, health and welfare and pension contribu- 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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.’’ tions. The Respondent engaged in this conduct without the Union’s consent. By letter dated March 2, 1992, the Union requested that the Respondent furnish it with certain information necessary for and relevant to the Union’s performance of its duties as the exclusive collective-bargaining rep- resentative of the unit. Since March 2, 1992, the Re- spondent has failed and refused to furnish the Union with the requested information. By failing and refusing to honor the terms of its col- lective-bargaining agreement with the Union in the manner described above, and by failing and refusing to provide relevant and necessary information to the Union at the Union’s request, the Respondent has failed and refused to bargain collectively and in good faith with the Union as the limited exclusive collec- tive-bargaining representative of the unit employees in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing to abide by the terms and conditions of its collective-bargaining agreement with the Union, and by failing and refusing to provide the Union with relevant and necessary information on re- quest, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) 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. Having found that the Respondent unlawfully failed to continue in full force and effect the terms and con- ditions of employment of its 1989–1992 agreement with the Union, we shall order it to comply with those terms and conditions of employment. Specifically, we shall order the Respondent to make unit employees whole by remitting to the fringe benefit funds the con- tractually required payments that would have been made on behalf of unit employees but for the Respond- ent’s failure to adhere to its agreement, with any inter- est or other sums applicable to those payments to be determined in accordance with the Board’s decision in Merryweather Optical Co., 240 NLRB 1213 (1979). We shall also require the Respondent to reimburse unit employees, with interest, for any expenses or loss of benefits they may have suffered as a result of its fail- ure to make the contractually required fringe benefit contributions, as prescribed in Kraft Plumbing & Heat- ing, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). All backpay amounts shall be com- puted as in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), and inter- est shall be computed as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Having found that the Respondent unlawfully failed to furnish the Union with requested information, we shall order it to provide that information at the Union’s request. ORDER The National Labor Relations Board orders that the Respondent, American Industries of Indiana, Inc., Hamilton, Ohio, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to make the payments called for in its collective-bargaining agreement with the Union to the health and welfare and pension benefit funds. (b) Failing and refusing to furnish the Union with requested information that is relevant to and necessary for the Union’s performance of its duties as the limited exclusive collective-bargaining representative of the employees in the following appropriate unit: All carpenters in the employ of the Respondent, excluding all other employees and all guards and supervisors within the meaning of the Act. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole the unit employees and, on their be- half, the health and welfare and pension benefit funds, for any losses suffered as a result of the Respondent’s failure since March 2, 1992, to adhere to the terms of the 1989–1992 agreement, in the manner set forth in the remedy section of this Decision and Order. (b) On request, furnish the Union with the informa- tion requested in paragraphs 1, 2, 3, 6, 7, and 8 of its letter dated March 2, 1992. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, trust fund state- ments, and all other documents and records necessary to analyze the amount of backpay and the fringe bene- fit payments due under the terms of this Order. (d) Post at its facility in Hamilton, Ohio, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent’s authorized representative, shall be posted by the Re- 63 AMERICAN INDUSTRIES spondent immediately upon receipt and maintained for 60 consecutive 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 make the payments called for in our collective-bargaining agreement with the Union to the health and welfare and pension bene- fit funds. WE WILL NOT fail and refuse to furnish the Union with requested information that is relevant to and nec- essary for the Union’s performance of its duties as the limited exclusive collective-bargaining representative of the employees in the following appropriate unit: All carpenters in the employ of American Indus- tries of Indiana, Inc., excluding all other employ- ees and all guards and supervisors within the meaning of the Act. 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 make whole, with interest, our unit em- ployees and, on their behalf, the health and welfare and pension benefit funds, for any losses they have suffered because of our failure since March 2, 1992, to adhere to the terms of our 1989–1992 agreement with the Union. WE WILL, on request, furnish the Union with the in- formation requested in its letter dated March 2, 1992. AMERICAN INDUSTRIES OF INDIANA, INC.