Cray Construction Group LLC

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 428 Cray Construction Group LLC and Laborers Inter- national Union of North America, Local 130, AFL–CIO. Case 4–CA–32367 March 5, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS WALSH AND MEISBURG The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union on August 18, 2003, the General Counsel issued the complaint on November 26, 2003, against Cray Con- struction Group LLC (the Respondent), alleging that it has violated Section 8(a)(1) and (5) of the Act. The Re- spondent failed to file an answer. On December 23, 2003, the General Counsel filed a Motion for Default Judgment with the Board. On De- cember 24, 2003, 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 Default 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. In addition, the complaint affirmatively stated that unless an answer was filed on or before December 10, 2003, all the allegations in the complaint may be found to be true. Further, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated December 10, 2003, notified the Respon- dent that unless an answer was received by December 17, 2003, a motion for default 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 Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Pennsylvania corporation, with an office in Gap, Pennsylvania, has been engaged as a concrete contractor in the construction industry. During the 12-month period preceding the issuance of the complaint, the Respondent, in conducting its business operations described above, at a parking garage construc- tion project located in Scranton, Pennsylvania, provided services valued in excess of $50,000 directly to the Quandel Group, Inc., an enterprise located within the Commonwealth of Pennsylvania. At all material times, the Quandel Group, Inc., a Penn- sylvania corporation, with an office and place of business in Harrisburg, Pennsylvania, has been engaged as a con- struction general contractor. During the past year, the Quandel Group, Inc., in con- ducting its business operations described above, pur- chased and received at its Harrisburg, Pennsylvania of- fice goods and services valued in excess of $50,000 di- rectly from points outside the Commonwealth of Penn- sylvania. 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 Laborers International Union of North America, Local 130, AFL–CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Michael Smith has held the posi- tion of the Respondent’s president and has been a super- visor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. On or about March 18, 2003, the Respondent became signatory to, and bound to the terms of, the collective- bargaining agreement (the Agreement), between Labor- ers’ District Council of Eastern Pennsylvania and Gen- eral and Sub-Contractors’ Associations, effective by its terms from May 1, 1998, to April 30, 2003, and continu- ing in effect from year to year thereafter unless either party submits notice of termination “in writing to the other party not less than 60 days prior to the expiration date.” The Respondent has not notified the Union of its intent to terminate the Agreement pursuant to the terms therein. Pursuant to the Agreement, the Respondent recognized the Union as the exclusive collective-bargaining repre- sentative of a unit consisting of journeymen laborers, construction specialists, mason and plaster tenders, skid- steering loader and forklift laborers, masonry crane la- borers, and foremen performing work within the geo- graphic jurisdiction of the Union. The Respondent engaged in the conduct described above without regard to whether the majority status of the Union had ever been established under the provisions of Section 9(a) of the Act. At all material times, the unit has been appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 341 NLRB No. 50 CRAY CONSTRUCTION GROUP 429 At all material times since at least March 18, 2003, based on Section 9(a) of the Act, the Union has been the limited exclusive collective-bargaining representative of the unit. Since on or about April 15, 2003, the Respondent has ceased abiding by the Agreement while performing work within the geographic jurisdiction of the Union by, inter alia, failing and refusing to remit dues moneys to the Union and to make wage payments to employees as re- quired by the Agreement. The subjects set forth above relate to wages, hours, and other terms and conditions of employment of the unit and are mandatory subjects for the purposes of collective bargaining. The Respondent engaged in the conduct described above without prior notice to the Union and without hav- ing afforded the Union an opportunity to bargain with the Respondent concerning this conduct. The Respondent engaged in the conduct described above without the Union’s consent. CONCLUSION OF LAW By the conduct described above, the Respondent has been failing and refusing to bargain collectively with the limited exclusive collective-bargaining representative of its employees, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.1 1 The complaint also alleges that the Respondent violated Sec. 8(a)(5) of the Act by failing to make contributions to “certain funds” as required by the contract. However, neither the complaint nor the mo- tion describe what those funds are. The Board has held that certain types of benefit funds are permissive subjects of bargaining for which no remedy would be warranted. See, e.g., Finger Lakes Plumbing & Heating Co., 254 NLRB 1399 (1981) (industry advancement fund). There is no indication here as to the nature of the funds involved. In these circumstances, we decline to find that the Respondent violated the Act by refusing to make contributions to these unspecified funds. Accordingly, the motion is denied with respect to this allegation, and the matter is remanded to the Regional Director for further appropriate action. Nothing herein will require a hearing if, in the event of an appropriate amendment to the complaint, the Respondent again fails to answer, thereby admitting evidence that would permit the Board to find the alleged violation. In such circumstances, the General Counsel may renew the motion for default judgment with respect to the amended complaint allegations. See VMI Cabinets & Millwork, 340 NLRB No. 143, slip op. at 3 fn. 2 (2003) (default judgment denied as to allegation that respondent failed to bargain over decision to close business); St. Regis Hotel, 339 NLRB 143, slip op. at 2 fn. 3 (2003) (default judg- ment denied as to information request for “other matters important to the Union.”); see also Michigan Inn, 340 NLRB No. 115, slip op. at 7 (2003) (complaint not well pleaded if too vague to determine whether a violation occurred). Member Walsh notes that although the complaint does not describe the “certain funds,” it alleges that they are mandatory subjects of bar- gaining. By failing to file an answer, the Respondent has admitted this complaint allegation. Therefore, Member Walsh would grant default judgment with respect to the Respondent’s uncontested failure to make 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) by, inter alia, failing and refusing since April 15, 2003, to remit dues moneys to the Union, we shall order the Respondent to remit to the Union all such dues mon- eys that were deducted from unit employees’ pay pursu- ant to valid dues-checkoff authorizations, as required by the Agreement, with interest as prescribed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987). In addition, having found that the Respondent violated Section 8(a)(5) and (1) since April 15, 2003, by other- wise ceasing to abide by the agreement, including by failing and refusing to make wage payments to employ- ees as required by the Agreement, we shall order the Re- spondent to make whole its unit employees for any loss of earnings and other benefits they have suffered as a result. All payments to employees shall be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Re- tarded, supra. ORDER The National Labor Relations Board orders that the Respondent, Cray Construction Group LLC, Gap, Penn- sylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to abide by its collective- bargaining agreement by, inter alia, failing and refusing to remit dues moneys to Laborers’ International Union of North America, Local 130, AFL–CIO, and failing and refusing to make wage payments to unit employees. The appropriate unit includes journeymen laborers, construc- tion specialists, mason and plaster tenders, skid-steering loader and forklift laborers, masonry crane laborers, and foremen performing work within the geographic jurisdic- tion of the Union. (b) In any like or related manner interfering with, re- straining, 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) Remit to the Union dues that were deducted from unit employees’ pay pursuant to valid dues-checkoff au- the fund contributions. However, he would leave to compliance the issue of whether any of the funds are permissive subjects of bargaining for which no remedy would be warranted. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 430 thorizations, and that were not remitted since about April 15, 2003, as required by the collective-bargaining agree- ment, with interest, in the manner set forth in the remedy section of this Decision. (b) Make whole unit employees for any loss of earn- ings and other benefits ensuing from its failure to abide by the collective-bargaining agreement since April 15, 2003, including its failure to make the contractually re- quired wage payments to employees, with interest, as set forth in the remedy section of this Decision. (c) 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. (d) Within 14 days after service by the Region, post at its facility in Gap, Pennsylvania, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 4, 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 15, 2003. (e) 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- 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.” testing to the steps that the Respondent 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 vio- lated 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 behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to abide by our collective- bargaining agreement by, among other things, failing and refusing to remit dues moneys to Laborers’ International Union of North America, Local 130, AFL–CIO, and fail- ing and refusing to make wage payments to our unit em- ployees. The appropriate unit includes journeymen la- borers, construction specialists, mason and plaster ten- ders, skid-steering loader and forklift laborers, masonry crane laborers, and foremen performing work within the geographic jurisdiction of the Union. 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 remit to the Union dues that were deducted from unit employees’ pay pursuant to valid dues- checkoff authorizations, and that were not remitted since about April 15, 2003, as required by the collective- bargaining agreement, with interest. WE WILL make whole our unit employees for any loss of earnings and other benefits ensuing from our failure to abide by the collective-bargaining agreement since April 15, 2003, including our failure to make the contractually required wage payments to employees, with interest. CRAY CONSTRUCTION GROUP LLC