Ponce Construction

333 NLRB No. 40 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Ponce Construction, Inc. and United Brotherhood of Carpenters and Joiners of America, Local 839, AFL–CIO. Case 13–CA–38643 February 9, 2001 DECISION AND ORDER Upon a charge filed by the Union on June 16, 2000, the General Counsel of the National Labor Relations Board issued a complaint on August 25, 2000, and an amendment to the complaint on November 27, 2000, against Ponce Construction, Inc., the Respondent, alleg- ing that it has violated Section 8(a)(1) and (5) of the Na- tional Labor Relations Act. Although properly served copies of the charge, the complaint, and the amendment to the complaint, the Respondent failed to file an answer. On January 3, 2001, the Acting General Counsel filed a Motion for Summary Judgment with the Board. On January 5, 2001, 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 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 Sections 102.20 and 102.21 of the Board’s Rules and Regulations provide 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. In addition, the complaint affirmatively notes that unless an answer is filed within 14 days of service, all the allegations in the complaint will be considered admitted. Further, the undisputed allegations in the Mo- tion for Summary Judgment disclose that the Region, by letter dated December 12, 2000, notified the Respondent that unless an answer was received by December 19, 2000, a Motion for Summary Judgment would be filed. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Illinois cor- poration, has been engaged in the construction industry from its facility located in Chicago, Illinois. During the calendar year preceding issuance of the complaint, the Respondent, in conducting its operations described above, purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Illinois. 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 At all material times, Jose A. Rodriguez has held the position of the Respondent’s president, and has been a supervisor of the Respondent within the meaning of Sec- tion 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. The following employees of the Respondent (the Unit), constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All Journeymen, Foremen, Apprentices and Trainees engaged in work at the construction site covered by the occupational jurisdiction of the “UNION” including, but not limited to, the milling, fashioning, joining, assem- bling, erection, fastening or dismantling of all material of wood, plastic, metal, fiber, cork, and composition, and all other substitute materials; the handling, erect- ing, installing and dismantling of machinery and equipment, hydraulic jacking and raising, and the manufacturing of all material where the skill, knowl- edge and training of the Employees are required, either through the operation of machine or hand tools. The Bargaining Unit shall also consist of all Journeymen, Foremen, Apprentice and Trainees engaged in work as Carpenters and Joiners, Millwrights, Pile Drivers; Bridge Dock and Wharf Carpenters, Divers, Underpin- ners, and Timbermen and Coredrillers; Ship Wrights, Boat Builders and Ship Carpenters, Joiners and Caulk- ers, Cabinet Makers, Bench Hands, Stair Builders, Millmen, Wood and Resilient Floor Layers, and Fin- ishers, Carpet Layers, Shinglers, Siders, Insulators, Acoustic and Dry Wall Applicators; Shorers and House Movers; Loggers, Lumber and Sawmill Workers; Cas- ket and Coffin Makers; Furniture Workers, Reed and Rattan Workers; Shingle Weavers, Box Makers, Rail- road Carpenters and Car Builders and Show, Display and Exhibition Workers and Lathers, regardless of ma- terials used; and all those engaged in the operation of wood working or the machinery required in the fash- ioning, milling or manufacturing of products used in the trade, or engaged as helpers to any of the above di- visions or subdivisions, and the handling, erecting, and installing material on any of the above divisions or subdivisions; burning, welding, rigging and the use of any instrument or tool for layout work, incidental to the trade employed by Respondent at its facility currently located at 4505 W. Grand Avenue, Chicago, Illinois; but excluding managers, guards and supervisors as de- fined in the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Since about December 7, 1993, the Union has been the designated collective-bargaining representative of the Unit and, since that date, the Union has been recognized as the representative by the Respondent. This recogni- tion has been embodied in successive collective- bargaining agreements, the most recent of which is effec- tive by its terms for the period June 1, 1998 to May 31, 2001. At all times since about December 7, 1993, the Union, by virtue of Section 9(a) of the Act, has been the exclu- sive representative of the Unit for the purposes of collec- tive bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. Since about March 15, 2000, the Union has requested, by letter, that the Respondent furnish it with the follow- ing information: A copy of any and all personnel files, records, pay- checks, pay stubs, and time cards for both Gerardo Rodriguez and Daniel Marroquin, and any other docu- ments demonstrating their attendance dates and times. The information requested by the Union is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the Unit. Between April 5, 2000 and June 20, 2000, the Respondent failed and refused to furnish the Union with the requested information. The Union incurred a $750 arbitration cancellation fee because the Respondent failed to provide the requested information in a timely manner. CONCLUSION OF LAW By the acts and conduct described above, the Respon- dent has failed and refused to bargain collectively and in good faith with the exclusive collective-bargaining repre- sentative of its employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(5) and (1), we shall order the Respondent to furnish the Union with the information it requested on March 15, if the Respondent has not already done so. In addition, we shall order the Respondent to reim- burse the Union for the $750 arbitration cancellation fee that the Union incurred because the Respondent failed to provide the requested information in a timely manner, with interest as prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). The Respondent was on notice that the General Counsel was seeking this reim- bursement remedy, as it was requested in the amendment to the complaint, which was served on the Respondent. This relief is warranted to remedy the injury suffered by the Union as a direct result of the Respondent’s unfair labor practice, is tailored to the specific facts of this case, and is consistent with the Board’s established policy of requiring wrongdoers to remedy the consequences of their unlawful conduct. See, e.g., Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984) (backpay remedy should be tailored to expunge the actual consequences of the unfair labor practices). ORDER The National Labor Relations Board orders that the Respondent, Ponce Construction, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with United Brotherhood of Carpenters and Joiners of America, Local 839, AFL–CIO, by failing to furnish the Union with information that is relevant and necessary to its role as the exclusive bargaining represen- tative of the employees in the following appropriate unit: All Journeymen, Foremen, Apprentices and Trainees engaged in work at the construction site covered by the occupational jurisdiction of the “UNION” including, but not limited to, the milling, fashioning, joining, assem- bling, erection, fastening or dismantling of all material of wood, plastic, metal, fiber, cork, and composition, and all other substitute materials; the handling, erect- ing, installing and dismantling of machinery and equipment, hydraulic jacking and raising, and the manufacturing of all material where the skill, knowl- edge and training of the Employees are required, either through the operation of machine or hand tools. The Bargaining Unit shall also consist of all Journeymen, Foremen, Apprentice and Trainees engaged in work as Carpenters and Joiners, Millwrights, Pile Drivers; Bridge Dock and Wharf Carpenters, Divers, Underpin- ners, and Timbermen and Coredrillers; Ship Wrights, Boat Builders and Ship Carpenters, Joiners and Caulk- ers, Cabinet Makers, Bench Hands, Stair Builders, Millmen, Wood and Resilient Floor Layers, and Fin- ishers, Carpet Layers, Shinglers, Siders, Insulators, Acoustic and Dry Wall Applicators; Shorers and House Movers; Loggers, Lumber and Sawmill Workers; Cas- ket and Coffin Makers; Furniture Workers, Reed and Rattan Workers; Shingle Weavers, Box Makers, Rail- road Carpenters and Car Builders and Show, Display and Exhibition Workers and Lathers, regardless of ma- terials used; and all those engaged in the operation of wood working or the machinery required in the fash- ioning, milling or manufacturing of products used in the trade, or engaged as helpers to any of the above di- visions or subdivisions, and the handling, erecting, and PONCE CONSTRUCTION 3 installing material on any of the above divisions or subdivisions; burning, welding, rigging and the use of any instrument or tool for layout work, incidental to the trade employed by Respondent at its facility currently located at 4505 W. Grand Avenue, Chicago, Illinois; but excluding managers, guards and supervisors as de- fined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exe rcise 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) To the extent that it has not already done so, fur- nish the Union with the information it requested on March 15, 2000. (b) Reimburse the Union for the $750 arbitration can- cellation fee that the Union incurred because the Re- spondent failed to provide the requested information in a timely fashion, in the manner set forth in the remedy section of this Decision. (c) Within 14 days after service by the Region, post at its facility in Chicago, Illinois, copies of the attached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 5, 2000. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 1 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Dated, Washington, D.C. February 9, 2001 John C. Truesdale, Chairman Peter J. Hurtgen, Member Dennis P Walsh, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail and refuse to bargain collectively and in good faith with United Brotherhood of Carpenters and Joiners of America, Local 839, AFL–CIO, by failing to furnish the Union with information that is relevant and necessary to its role as the exclusive bargaining represen- tative of our employees in the following appropriate unit: All Journeymen, Foremen, Apprentices and Trainees engaged in work at the construction site covered by the occupational jurisdiction of the “UNION” including, but not limited to, the milling, fashioning, joining, assem- bling, erection, fastening or dismantling of all material of wood, plastic, metal, fiber, cork, and composition, and all other substitute materials; the handling, erect- ing, installing and dismantling of machinery and equipment, hydraulic jacking and raising, and the manufacturing of all material where the skill, knowl- edge and training of the Employees are required, either through the operation of machine or hand tools. The Bargaining Unit shall also consist of all Journeymen, Foremen, Apprentice and Trainees engaged in work as Carpenters and Joiners, Millwrights, Pile Drivers; Bridge Dock and Wharf Carpenters, Divers, Underpin- ners, and Timbermen and Coredrillers; Ship Wrights, Boat Builders and Ship Carpenters, Joiners and Caulk- ers, Cabinet Makers, Bench Hands, Stair Builders, Millmen, Wood and Resilient Floor Layers, and Fin- ishers, Carpet Layers, Shinglers, Siders, Insulators, Acoustic and Dry Wall Applicators; Shorers and House Movers; Loggers, Lumber and Sawmill Workers; Cas- ket and Coffin Makers; Furniture Workers, Reed and Rattan Workers; Shingle Weavers, Box Makers, Rail- road Carpenters and Car Builders and Show, Display DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 and Exhibition Workers and Lathers, regardless of ma- terials used; and all those engaged in the operation of wood working or the machinery required in the fash- ioning, milling or manufacturing of products used in the trade, or engaged as helpers to any of the above di- visions or subdivisions, and the handling, erecting, and installing material on any of the above divisions or subdivisions; burning, welding, rigging and the use of any instrument or tool for layout work, incidental to the trade employed by us at our facility currently located at 4505 W. Grand Avenue, Chicago, Illinois; but exclud- ing managers, 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 exe rcise of the rights guaranteed you by Section 7 of the Act. WE WILL, to the extent we have not already done so, furnish the Union with the information it requested on March 15, 2000. WE WILL reimburse the Union for the $750 arbitration cancellation fee that the Union incurred because we failed to provide the requested information in a timely manner, with interest. PONCE CONSTRUCTION, INC.