Malik Roofing Corp.

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the E x­ 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. Malik Roofing Corporation and Sheet Metal Workers International Association, Local No. 18. Case 30–CA–15752–1 June 21, 2002 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND BARTLETT The General Counsel in this case seeks summary judgment on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by Sheet Metal Workers International Association, Local No. 18, the Union, on November 20, 2001, the General Counsel issued the complaint on January 31, 2002, against Malik Roofing Corporation, the Respondent. The complaint alleges that the Respondent has violated Section 8(a)(1) and (5) of the Act. The Respondent failed to file an answer. On March 20, 2002, the General Counsel filed a Mo­ tion for Summary Judgment with the Board. On March 22, 2002, the Board issued an order transferring the pro­ ceeding 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 February 21, 2002, notified the Respondent that unless an answer was received by March 1, 2002, 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, a corporation, has been engaged in the business of manufacturing, dis­ tributing, and installing roofing systems out of its Whitewater, Wisconsin facility. During the past calendar year, the Respondent, in conducting its operations, pur­ chased and received products, goods, and materials val­ ued in excess of $50,000 directly from suppliers located outside the State of Wisconsin. 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 The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargain­ ing within the meaning of Section 9(b) of the Act: [A]ll employees of the Employer engaged in but not limited to the (a) manufacture, fabrication, assembling, handling, erection, installation, dismantling, condition­ ing, adjustment, alteration, repairing and servicing of all ferrous or nonferrous metal work and all other mate- rials used in lieu thereof and of all air-veyor systems and air handling systems regardless of material used in­ cluding the setting of all equipment and all reinforce­ ments in connection therewith; (b) all lagging over in­ sulation and all duct lining; (c) testing and balancing of all air-handling equipment and duct work; (d) the preparation of all shop and field sketches used in fabri­ cation and erection, including those taken from original architectural and engineering drawings or sketches; and (e) all other work included in the jurisdictional claims of Sheet Metal Workers’ International Association. At all material times, the Union has been the designated exclusive collective-bargaining representative of the unit. On May 17, 2000, the Respondent and the Union signed an Assumption of Agreement. By entering into the Assumption of Agreement, the Respondent agreed to be bound by all the terms and conditions of the Union’s collective-bargaining agreement with Southeastern Sheet Metal Contractors Association, Inc., the Association, effective from September 1, 1998, through August 31, 2001. On May 31, 2000, the Respondent and the Union signed a Letter of Assent, by which the Respondent rec­ ognized the Union as the representative of the unit. The Respondent also agreed in the Letter of Assent to be bound to any successor agreement to the 1998–2001 col­ lective-bargaining agreement between the Union and the Association. At all times since May 31, 2000, the Union, by virtue of Section 9(a) of the Act, has been the exclusive collec­ tive-bargaining representative of the unit employees for purposes of collective bargaining with respect to wages, hours, and other terms and conditions of employment. Since about October 2000, and particularly since about May 20, 2001, and continuing to date, the Respondent has failed and refused to pay the contributions required by the terms and conditions of the 1998–2001 collective- 337 NLRB No. 103 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining agreement between the Union and the Association. The Respondent engaged in this conduct without prior notice to the Union, without affording the Union an opportunity to bargain over this conduct, and without the consent of the Union. By letter dated August 3, 2001, the Respondent repu­ diated its agreement to be bound by the terms and condi­ tions of the 1998–2001 collective-bargaining agreement between the Union and the Association, and its succes­ sors, and withdrew recognition of the Union as the exclu­ sive collective-bargaining representative of the unit, ef­ fective August 31, 2001. CONCLUSION OF LAW By the acts and conduct described above, the Respon­ dent has been failing and refusing to bargain collectively and in good faith with the exclusive collective- bargaining representative of the employees in the unit, and has thereby engaged in unfair labor practices affect­ ing 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, we shall order the Respondent to recognize and, on request, bar- gain with the Union as the exclusive collective- bargaining representative of the unit employees; to com­ ply with the Assumption of Agreement, the Letter of Assent, and the terms and conditions of the 1998–2001 agreement between the Union and the Association; and to make whole the unit employees for any loss of wages or earnings they may have suffered as a result of the Re­ spondent’s failure to abide by these agreements since August 3, 2001. In addition, we shall order the Respon­ dent to make whole the unit employees by making all contractually required contributions that have not been made since October 2000, including any additional amounts applicable to such delinquent payments in ac­ cordance with Merryweather Optical Co., 240 NLRB 1213, 1216 (1979).1 Further, the Respondent shall reim­ burse the unit employees for any expenses ensuing from its failure to make the required contributions since Octo­ ber 2000, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). All payments to unit employees shall be computed in the manner set forth in Ogle Protection Ser­ vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1 To the extent that an employee has made personal contributions to a benefit or other fund that have been accepted by the fund in lieu of the Respondent’s delinquent contributions during the period of the delinquency, the Respondent will reimburse the employee, but the amount of such reimbursement will constitute a setoff to the amount that the Respondent otherwise owes the fund. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Malik Roofing Corporation, Whitewater, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain collectively and in good faith with Sheet Metal Workers International Association, Local No. 18, as the exclusive collective-bargaining representative of the employees in the following unit: [A]ll employees of the Emp loyer engaged in but not limited to the (a) manufacture, fabrication, assembling, handling, erection, installation, dismantling, condition­ ing, adjustment, alteration, repairing, and servicing of all ferrous or nonferrous metal work and all other mate- rials used in lieu thereof and of all air-veyor systems and air handling systems regardless of material used in­ cluding the setting of all equipment and all reinforce­ ments in connection therewith; (b) all lagging over in­ sulation and all duct lining; (c) testing and balancing of all air-handling equipment and duct work; (d) the preparation of all shop and field sketches used in fabri­ cation and erection, including those taken from original architectural and engineering drawings or sketches; and (e) all other work included in the jurisdictional claims of Sheet Metal Workers’ International Association. (b) Failing and refusing to comply with the Assump­ tion of Agreement, the Letter of Assent, and the terms and conditions of the 1998–2001 collective-bargaining agreement between the Union and Southeastern Sheet Metal Contractors Association, Inc., and failing to make contractually required contributions for unit employees. (c) Impermissibly repudiating its agreement to abide by the terms and conditions of the Union’s 1998–2001 collective-bargaining agreement with Southeastern Sheet Metal Contractors Association, Inc., and impermissibly withdrawing recognition of the Union as the exclusive collective-bargaining representative of the unit. (d) 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) Recognize and, on request, bargain collectively and in good faith with the Union as the exclusive collective- bargaining representative of the employees in the unit set forth above. (b) Comply with the Assumption of Agreement, the Letter of Assent, and the terms and conditions of the 1998–2001 collective-bargaining agreement between the Union and Southeastern Sheet Metal Contractors Asso- MALIK ROOFING CORP. 3 ciation, Inc., and make whole the unit employees for any loss of wages and other benefits they may have suffered as a result of its failure to abide by these agreements since August 3, 2001, with interest as prescribed in the remedy section of this decision. (c) Make all contributions required by the terms and conditions of the 1998–2001 collective-bargaining agreement between the Union and Southeastern Sheet Metal Contractors Association, Inc., and make whole the unit employees by making all contractually required con­ tributions that have not been made since October 2000, including any additional amounts applicable to such de­ linquent payments, and by reimbursing the unit employ­ ees for any expenses incurred as a result of its failure to make contributions since October 2000, with interest as described in the remedy section of this decision. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig­ nated by the Board or its agents, all payroll records, so­ cial security payment records, timecards, personnel re- cords and reports, and all other records including an elec­ tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Whitewater, Wisconsin, copies of the at­ tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not al­ tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil­ ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no­ tice to all current employees and former employees em­ ployed by the Respondent at any time since October 2000. (f) 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. 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 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. June 21, 2002 Peter J. Hurtgen, Chairman Wilma B. Liebman, Member Michael J. Bartlett, 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 The National Labor Relations Board had found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi­ ties. WE WILL NOT fail and refuse to recognize and bargain collectively and in good faith with Sheet Metal Workers International Association, Local No. 18, as the exclusive collective-bargaining representative of the employees in the following unit: [A]ll employees of the Employers engaged in but not limited to the (a) manufacture, fabrication, assembling, handling, erection, installation, dismantling, condition­ ing, adjustment, alteration, repairing, and servicing of all ferrous or nonferrous metal work and all other mate- rials used in lieu thereof and of all air-veyor systems and air handling systems regardless of material used in­ cluding the setting of all equipment and all reinforce­ ments in connection therewith; (b) all lagging over in­ sulation and all duct lining; (c) testing and balancing of all air-handling equipment and duct work; (d) the preparation of all shop and field sketches used in fabri­ cation and erection, including those taken from original architectural and engineering drawings or sketches; and (e) all other work included in the jurisdictional claims of Sheet Metal Workers’ International Association. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT fail and refuse to comply with our As­ sumption of Agreement, our Letter of Assent, and the terms and conditions of the 1998–2001 collective- bargaining agreement between the Union and Southeast- ern Sheet Metal Contractors Association, Inc., and WE WILL NOT fail to make contractually-required contribu­ tions for unit employees. WE WILL NOT impermissibly repudiate our agreement to abide by the terms and conditions of the Union’s 1998–2001 collective-bargaining agreement with South- eastern Sheet Metal Contractors Association, Inc., and WE WILL NOT impermissibly withdraw recognition of the Union as the exclusive collective-bargaining representa­ tive of the unit. 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 recognize and, on request, bargain with the Union as the exclusive collective-bargaining representa­ tive of our employees in the above unit. WE WILL comply with our Assumption of Agreement, our Letter of Assent, and the terms and conditions of the 1998–2001 collective-bargaining agreement between the Union and Southeastern Sheet Metal Contractors Asso­ ciation, Inc. WE WILL make whole the unit employees for any loss of wages and other benefits they may have suffered as a result of our failure to abide by these agreements since August 3, 2001, with interest. WE WILL make all contributions required by the terms and conditions of the 1998–2001 collective-bargaining agreement between the Union and Southeastern Sheet Metal Contractors Association, Inc., and make whole the unit employees by making all contractually required con­ tributions that have not been made since October 2000, including any additional amounts applicable to such de­ linquent payments, and by reimbursing the unit employ­ ees for any expenses incurred as a result of our failure to make contributions since October 2000, with interest. MALIK ROOFING CORPORATION