Northeastern Fireproofing

212 310 NLRB 32No. 33 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The commerce data and the unit description in the complaint sug- gests that the Respondent is a construction industry employer subject to the provisions of Sec. 8(f) of the Act. However, we are unable to determine from the complaint or from the documents submitted by the General Counsel in support of the motion whether the bar- gaining relationship between the Respondent and the Union was es- tablished pursuant to Sec. 8(f) or pursuant to the Union’s showing of 9(a) majority support. Under John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), a union signatory to an 8(f) contract attains only limited 9(a) status confined to the terms of the contract. The burden of showing that a bargaining relationship between a union and a construction industry employer is not an 8(f) relationship is on the party asserting 9(a) status. Deklewa, supra at 1385 fn. 41. In the absence of an allegation that the bargaining relationship was based on a showing of 9(a) support, we find that the relationship was entered into pursuant to Sec. 8(f), and that the Union is, there- fore, the limited Sec. 9 representative of the Respondent’s employees for the period covered by the contract. Northeastern Fireproofing, Inc. and District Council Laborers’ International Union of North Amer- ica, AFL–CIO. Case 5–CA–22624 January 29, 1993 DECISION AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH Upon a charge filed by the Union on March 25, 1992, the General Counsel of the National Labor Rela- tions Board issued a complaint against Northeastern Fireproofing, Inc., the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent has failed to file an answer. On December 31, 1992, the General Counsel filed a Motion for Summary Judgment. On January 5, 1993, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. 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 of the allega- tions in the complaint shall be deemed to be admitted to be true and shall be so found by the Board.’’ Fur- ther, the undisputed allegations in the Motion for Sum- mary Judgment disclose that by letter dated September 11, 1992, counsel for the General Counsel notified the Respondent that unless an answer was received by close of business September 25, 1992, a Motion for Summary Judgment would be filed. To date, no answer has been filed by the Respondent. 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 Respondent, a Maryland corporation with an of- fice and place of business in Baltimore, Maryland, has been engaged as a contractor in the building and con- struction industry including performing construction and finishing work on public, commercial, and indus- trial products. During the 12 months preceding issuance of the complaint, a representative period, the Respondent, in the course and conduct of its business operations, purchased and received at its Baltimore, Maryland facility products, goods, and materials val- ued in excess of $50,000 directly from points outside the State of Maryland. We find that the Respondent is an employer engaged 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 Since in or about May 1991, and at all material times, the Union has been the designated limited ex- clusive collective-bargaining representative of the Re- spondent’s employees in an appropriate unit, and has, since then, been recognized as such by the Respond- ent.1 Such recognition has been embodied in succes- sive collective-bargaining agreements, the most recent of which is effective by its terms for the period April 1, 1991, to March 31, 1993. At all times since May 1991, the Union, by virtue of Section 9(a) of the Act, has been and is the limited exclusive representative of the Respondent’s unit employees with respect to their rates of pay, wages, hours of employment, and other terms and conditions of employment. The appropriate bargaining unit consists of: All laborers employed by the Employer in the City of Baltimore, Maryland, and the Maryland counties of Allegheny, Anne Arundel, Baltimore, Caroline, Carroll, Cecil, Dorchester, Frederick, Garrett, Harford, Howard, Kent, Queen Annes, Somerset, Talbot, Washington, Wicomico and Worchester, excluding office clerical employees, guards and supervisors as defined in the Act. Article XVII of the parties’ agreement requires the Respondent to make weekly contributions to the Con- 213 NORTHEASTERN FIREPROOFING 2 Any additional amounts applicable to these payments shall be computed in the manner prescribed in Merryweather Optical Co., 240 NLRB 1213 (1979). struction Workers’ Trust Fund, the Laborers’ District Council Pension Fund for Baltimore and Vicinity, the Laborers’ District Council Vacation Fund for Balti- more and Vicinity, the Laborers’ District Council Training Fund for Baltimore and Vicinity, and the La- borers-Employers Cooperation Education Trust. Sec- tion 10 of article XVII also provides that along with the contributions to the funds, the Respondent must send a remittance report form for each employee who worked during the month for which the payments are made in the employee’s name. Finally, article XVII, section 12 provides that the trustees of the funds shall have the right, through their designated representative, to inspect, audit, and copy the payroll records of the Employer with respect to the employees in the bar- gaining unit. Since on or about September 1, 1991, the Respond- ent has failed to continue in effect all the terms and conditions of its agreement with the Union by failing and refusing to make the required fund contributions, failing and refusing to provide the Union with the re- quired remittance report forms, and by failing and re- fusing, since on or about March 4, 1992, and at all times since, to allow its payroll records to be audited, as required by article XVII, section 12 of the agree- ment. The above subjects relate to unit employees’ wages, hours, and other terms and conditions of em- ployment and constitute mandatory subjects of bar- gaining. We find that by engaging in such conduct, the Respondent has failed and refused, and is failing and refusing, to bargain collectively and in good faith with the Union as the exclusive collective-bargaining rep- resentative of the unit employees, and has violated Section 8(a)(5) and (1) of the Act, as alleged. CONCLUSION OF LAW By refusing since on or about September 1, 1991, to make the required contributions to the various funds as required by article XVII of its agreement with the Union, refusing to provide the Union with the required remittance report forms, and refusing since on or about March 4, 1992, and at all times since, to allow its pay- roll records to be audited, as required by article XVII, section 12 of the agreement, the Respondent has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 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. We shall order the Respondent to continue in effect all the terms and conditions of its collective-bargaining agreement with the Union, and to make all contribu- tions to the Construction Workers’ Trust Fund, the La- borers’ District Council Pension Fund for Baltimore and Vicinity, the Laborers’ District Council Vacation Fund for Baltimore and Vicinity, the Laborers’ District Council Training Fund for Baltimore and Vicinity, and the Laborers-Employers Cooperation Education Trust, that have not been made since on or about September 1, 1991.2 We shall also order the Respondent to remit to the Union the remittance report forms that have not been provided since on or about September 1, 1991, to allow the trustees of the funds, through their des- ignated representative, to audit its payroll records, and to make unit employees whole for any expenses they may have incurred because of the Respondent’s failure to fully comply with all the terms and conditions of its agreement with the Union, as set forth in Kraft Plumb- ing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest on such amounts to be computed in the manner described in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Northeastern Fireproofing, Inc., Baltimore, Maryland, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to continue in effect all the terms and conditions of its collective-bargaining agree- ment with District Council Laborers’ International Union of North America, AFL–CIO, which is the des- ignated limited exclusive bargaining representative of the Respondent’s employees in an appropriate unit, by refusing to make contributions to Construction Work- ers’ Trust Fund, the Laborers’ District Council Pension Fund for Baltimore and Vicinity, the Laborers’ District Council Vacation Fund for Baltimore and Vicinity, the Laborers’ District Council Training Fund for Baltimore and Vicinity, and the Laborers-Employers Cooperation Education Trust, by failing and refusing to provide the Union with remittance report forms, and by failing and refusing to allow the trustees of the funds, through their designated representative, to audit its payroll records with respect to unit employees, as required by the collective-bargaining agreement. The appropriate bargaining unit consists of: All laborers employed by the Employer in the City of Baltimore, Maryland, and the Maryland counties of Allegheny, Anne Arundel, Baltimore, Caroline, Carroll, Cecil, Dorchester, Frederick, Garrett, Harford, Howard, Kent, Queen Annes, 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 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.’’ Somerset, Talbot, Washington, Wicomico and Worchester, excluding office clerical employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Continue in full force and effect all the terms and conditions of its agreement with the Union, make all required contributions to the Construction Workers’ Trust Fund, the Laborers’ District Council Pension Fund for Baltimore and Vicinity, the Laborers’ District Council Vacation Fund for Baltimore and Vicinity, the Laborers’ District Council Training Fund for Baltimore and Vicinity, and the Laborers-Employers Cooperation Education Trust that have not been made since on or about September 1, 1991, provide the Union with the remittance report forms that have not been remitted since on or about the same date, and permit the trust- ees of the funds, through their designated representa- tive, to conduct the audits of its payroll records with respect to unit employees that have not been allowed since on or about March 4, 1992. (b) Make whole unit employees for any expenses they may have incurred as a result of the Respondent’s refusal to comply fully with the terms of its agreement with the Union, with interest as set forth in the remedy section of this decision. (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, and all other records necessary to analyze the amounts due under the terms of this Order. (d) Post at its facility in Baltimore, Maryland, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Regional Director for Region 5, 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 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 continue in effect all the terms and conditions of our collective-bar- gaining agreement with District Council Laborers’ International Union of North America, AFL–CIO, which is the designated limited exclusive collective- bargaining representative of our employees in an ap- propriate unit, by refusing to make required contribu- tions to the Construction Workers’ Trust Fund, the La- borers’ District Council Pension Fund for Baltimore and Vicinity, the Laborers’ District Council Vacation Fund for Baltimore and Vicinity, the Laborers’ District Council Training Fund for Baltimore and Vicinity, and the Laborers-Employers Cooperation Education Trust, WE WILL NOT fail and refuse to provide the Union with remittance report forms as required by article XVII, section 10 of that agreement, and WE WILL NOT fail and refuse to allow the trustees of the funds, through their designated representative, to audit our payroll records as required by article XVII, section 12 of the agreement. The appropriate bargaining unit consists of: All laborers employed by the Employer in the City of Baltimore, Maryland, and the Maryland counties of Allegheny, Anne Arundel, Baltimore, Caroline, Carroll, Cecil, Dorchester, Frederick, Garrett, Harford, Howard, Kent, Queen Annes, Somerset, Talbot, Washington, Wicomico and Worchester, excluding office clerical employees, guards and supervisors as defined in 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 continue in full force and effect all the terms and conditions of our collective-bargaining agreement with the Union, WE WILL make all required contributions to the Construction Workers’ Trust Fund, the Laborers’ District Council Pension Fund for Balti- more and Vicinity, the Laborers’ District Council Va- cation Fund for Baltimore and Vicinity, the Laborers’ District Council Training Fund for Baltimore and Vi- cinity, and the Laborers-Employers Cooperation Edu- cation Trust that have not been made since on or about September 1, 1991, WE WILL remit to the Union the re- mittance report forms that have not been provided since on or about the same date, and WE WILL allow the trustees of the funds, through their designated rep- resentative, to conduct audits of our payroll records 215 NORTHEASTERN FIREPROOFING with respect to our unit employees that have not been allowed since on or about March 4, 1992. WE WILL make whole unit employees for any ex- penses they may have incurred as a result of our fail- ure and refusal to comply fully with all the terms and conditions of our agreement with the Union, with in- terest. NORTHEASTERN FIREPROOFING, INC.