Laborers Local 334 (Burdco Environmental)

350 303 NLRB No. 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Art. II, sec. 1, provides in pertinent part: Each employee, as a condition of employment thereafter, shall become and remain a member of the Union in good standing by tendering his ini- tiation fee and periodic dues or working dues for the term of his employ- ment on and after the 8th (eighth) calendar day, beginning with the first Laborers’ Local Union #334, Laborers’ Inter- national Union of North America, AFL–CIO (Burdco Environmental, Inc.) and Gregory Zalucki. Case 7–CB–8504 June 12, 1991 DECISION AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH Upon a charge filed by Gregory Zalucki, the Charg- ing Party, on October 12, 1990, the General Counsel of the National Labor Relations Board issued a com- plaint on November 29, 1990, against the Union, the Respondent, alleging that it has violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent has failed to file a timely answer. On February 8, 1991, the General Counsel filed a Motion for Summary Judgment, with exhibits attached. On February 12, 1991, 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. On February 26, 1991, the Board received a reply to the Motion for Summary Judgment and an answer to the complaint. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations 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 complaint states that unless an answer is filed within 14 days of service, ‘‘all the allegations in the Complaint shall be deemed to be so admitted true and may be so found by the Board.’’ Further, the undisputed allegations in the Motion for Summary Judgment disclose that the Regional attorney for Re- gion 7, by certified letter dated December 18, 1990, notified the Respondent that unless an answer was re- ceived by January 2, 1991, a Motion for Summary Judgment would be filed. In its reply to the General Counsel’s Motion for Summary Judgment, the Respondent contends that its failure to file a timely answer was because (1) the agents and officers set forth in the complaint were elected and/or appointed to their positions for the first time in June 1990; (2) these agents and officers were not familiar with the rules and regulations of the Board and had never been confronted with a formal com- plaint filed by the General Counsel; and (3) they were informed and believed that, to contest the allegations set forth in the complaint, they only needed to be present on the day of the hearing. As indicated above, however, it is undisputed that the Respondent was served a copy of the complaint which stated the need to file an answer and that all allegations in the com- plaint might be deemed admitted unless an answer were filed. Further, the Regional attorney, in his De- cember 18, 1990 letter to the Respondent, explained that if no answer were received by January 2, 1991, a Motion for Summary Judgment would be filed. The Respondent did not offer any explanation for its failure to act until about 8 weeks after the extended deadline. Under these circumstances, we find that the Respond- ent has not shown good cause for its failure to file a timely answer, and we, therefore, reject the Respond- ent’s untimely February 26, 1991 answer. In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Employer, Burdco Environmental, Inc., a Michigan corporation, maintains its principal office and place of business in Traverse City, Michigan, where it provides asbestos removal and abatement services. During the year ending December 3, 1989, a representative period, the Employer, in the course and conduct of its business operations, purchased and caused to be transported and delivered at its various Michigan jobsites goods and materials valued in excess of $75,000, of which goods and materials valued in ex- cess of $50,000 were transported and delivered to its various jobsites in Michigan, directly from points lo- cated outside the State of Michigan. We find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Since about October 1, 1990, Burdco Environmental, Inc. and the Respondent have been signatories to a col- lective-bargaining agreement in which they agreed to be bound by all the terms and conditions of the collec- tive-bargaining agreement between the Asbestos and Lead Paint Abatement Contractors Association and the State of Michigan Laborers’ International Union of North America. This collective-bargaining agreement contains a union-security clause.1 351 LABORERS LOCAL 334 (BURDCO ENVIRONMENTAL) day of his employment by any Employer covered by this Agreement, or on and after the 8th (eighth) calendar day following the effective date of this Agreement, whichever is the latter [sic]. 2 The Board has long held that a union seeking the discharge of an em- ployee for failing to pay dues must first provide that employee with a state- ment of the precise amount owed, the method by which that amount was com- puted, and an opportunity to make payment. Philadelphia Sheraton Corp., 136 NLRB 888 (1962), enfd. sub nom. NLRB v. Hotel Employees Local 568, 320 F.2d 254 (3d Cir. 1963). 3 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 Rela- tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ About October 10, 1990, the Respondent, by its agent Ronald C. Allen, in accordance with the union- security agreement, caused the layoff of Gregory Zalucki from the Employer’s Roseville jobsite for fail- ure to tender periodic dues payments and/or failure to show proof of such payments. Prior to requesting the layoff, the Respondent failed to notify Zalucki of the precise amount and months for which dues were owed and when they were to be paid. The Respondent also failed to warn Zalucki that his discharge was immi- nent. By arbitrarily depriving Zalucki of an adequate opportunity to undertake the action necessary to pro- tect and retain his employment, the Respondent breached its fiduciary duty.2 We find that the Respond- ent thereby violated Section 8(b)(1)(A) and (2) of the Act. CONCLUSION OF LAW By causing or attempting to cause Burdco Environ- mental, Inc. to lay off Gregory Zalucki for his failure to tender periodic dues payments and/or his failure to show proof of such payments, without first advising him of his obligation to do so and providing him an adequate opportunity to undertake the action necessary to protect and retain his employment, the Respondent, Laborers’ Local Union #334, Laborers International Union of North America, AFL–CIO, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2) 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 caused the layoff of Gregory Zalucki, we shall order it (1) to notify the Employer that it has no objection to the re- employment of Gregory Zalucki; (2) to seek Gregory Zalucki’s reinstatement with the Employer; and (3) to make Gregory Zalucki whole, with interest, for any loss of earnings and other benefits he may have suf- fered by reason of the discrimination against him from the date of his layoff until he is reinstated to his former or substantially equivalent position or he ob- tains substantially equivalent employment. Loss of earnings shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). Interest shall be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Union shall also be ordered to remove from its files any reference to Zalucki’s unlawful layoff and shall be required to notify Zalucki, in writing, of its actions and inform him that his unlawful layoff shall not be used as a basis for future action against him. Further, the Union shall be required to ask the Em- ployer, Burdco Environmental, Inc., to remove from its files any reference to Zalucki’s layoff and shall notify Zalucki that it has asked his Employer to do so. R. H. Macy & Co., 266 NLRB 858 (1983). ORDER The National Labor Relations Board orders that the Respondent, Laborers’ Local Union #334, Laborers International Union of North America, AFL–CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause Burdco Environ- mental, Inc. to discharge or otherwise discriminate against Gregory Zalucki or any other employee for failure to tender to the Respondent periodic dues, with- out adequately advising him of his obligation. (b) In any like or related manner restraining or co- ercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify the Employer that it has no objection to the reemployment of Gregory Zalucki and seek Greg- ory Zalucki’s reinstatement with Burdco Environ- mental, Inc. (b) Make Gregory Zalucki whole, with interest, for any loss of earnings and other benefits he may have incurred as a result of the discrimination against him. Backpay shall be computed in the manner prescribed in the remedy section of this decision. (c) Remove from its files, and ask the Employer to remove from its files, any reference to Gregory Zalucki’s unlawful layoff and notify him, in writing, that this has been done and that evidence of this action shall not be used as a basis for future action against him. (d) Post at its facility in Detroit, Michigan, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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) Forward a sufficient number of signed copies of the notice to the Regional Director for Region 7 for posting by Burdco Environmental, Inc. at its place of business in Traverse City, Michigan, in places where notices to employees are customarily posted, if the Employer is willing to do so. (f) 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, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (g) 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 MEMBERS 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 cause or attempt to cause Burdco En- vironmental, Inc. to discharge or otherwise discrimi- nate against Gregory Zalucki or any other employee for failure to tender periodic dues without adequately advising him of his obligation. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment. WE WILL notify Burdco Environmental, Inc. that we have no objection to the reemployment of Gregory Zalucki and WE WILL seek his reinstatement with the Employer. WE WILL make Gregory Zalucki whole, with inter- est, for any loss of earnings and other benefits he may have incurred by reason of our discrimination against him. WE WILL remove from our files and WE WILL ask the Employer to remove from its files any reference to Gregory Zalucki’s layoff and WE WILL notify him, in writing, that this has been done and that evidence of this action shall not be used as a basis for future action against him. LABORERS’ LOCAL UNION #334, LA- BORERS’ INTERNATIONAL UNION OF NORTH AMERICA, AFL–CIO