John Mahoney Construction Co., Inc.

JOHN MAHONEY CONSTRUCTION CO John Mahoney Construction Company, Inc. and Ex- cavating and Building Material Chauffeurs & Helpers Local Union No. 379, a/w Internation- al Brotherhood of Teamsters , Chauffeurs, Ware- housemen & Helpers of America. Case 1-CA- 22158 15 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by Excavating and Building Material Chauffeurs & Helpers Local Union No. 379, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (the Charging Party), the General Counsel of the National Labor Relations Board issued a complaint on 6 August 1984 against John Mahoney Construc- tion Company, Inc. (the Respondent) alleging that it has violated Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act. Although properly served copies of the charge and complaint, the Respondent has failed to file an answer. 1 Ruling on Motion for Summary Judgment Section 102.20 of the Board's rules and Regula- tions provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 10 days from service of the complaint, unless good cause is shown. The complaint states that, unless an answer is filed within 10 days of service, "all of the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." The undisputed allega- tions of the Motion for Summary Judgment dis- close that on 31 August 1984, having received no answer to the complaint from the Respondent, counsel for the General Counsel sent a certified letter to the Respondent reminding it of the re- quirements of the Board's Rules and Regulations cited above, and extending the date for filing an ' On 2 November 1984 counsel for the Respondent filed a motion re- questing the Board to remand the case to the General Counsel and to allow the Respondent to file a late answer In support of the motion the Respondent cited the late retention of counsel on 17 October 1984 and the possibility that processing the General Counsel's Motion for Summa- ry Judgment would jeopardize pending settlement discussions As more fully described below, counsel for the General Counsel notified the Re- spondent by letters dated 31 August and 10 September 1984, and had at least one telephone conversation with the Respondent during that time, in which counsel for the General Counsel stressed to the Respondent the necessity of filing an answer to the complaint, notwithstanding settlement discussions then pending The Respondent was put on notice repeatedly by counsel for the General Counsel of the gravity of its failure to file an answer yet did not even retain counsel until fully 10 weeks after issuance of the complaint We find no basis for granting the Respondent's motion and we deny it 109 answer to 4 September 1984. Thereafter, on 10 September 1984, having still not received an answer, counsel for the General Counsel sent a second certified letter to the Respondent recount- ing a telephone conversation between him and the Respondent's president John Mahoney, during which Mahoney informed counsel for the General Counsel that he did not intend to file an answer be- cause of pending settlement discussions. During their telephone conversation and again in the letter of 10 September, counsel for the General Counsel reemphasized the necessity for filing an answer notwithstanding settlement discussions, again extend the time for filing an answer to 14 Septem- ber 1984, and stated his intention to file a Motion for Summary Judgment if no answer was forth- coming at that time. The letter was clear in ex- plaining the consequences of the Respondent's con- tinued refusal to act. On 19 September 1984 coun- sel for the General Counsel filed his Motion for Summary Judgment. 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 Judg- ment. 2 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent is a corporation with an office and place of business in Milton, Massachusetts, where it is engaged as a contractor in the building and construction industry. Annually, in the course and conduct of its business, the Respondent per- forms construction services valued in excess of $50,000 for customers in the Commonwealth of Massachusetts, who in turn annually perform serv- ices valued in excess of $50,000 directly for cus- tomers located outside the Commonwealth of Mas- sachusetts and who annually purchase and receive equipment and supplies valued in excess of $50,000 directly from suppliers located outside the Com- monwealth of Massachusetts. We find that the Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Charging Party is a labor organi- zation within the meaning of Section 2(5) of the Act. 2 In granting the General Counsel's Motion for Summary Judgment, Chairman Dotson specifically relies on the total failure of the Respondent to contest either the factual allegations or the legal conclusions of the General Counsel's complaint Thus, the Chairman regards this proceeding as being essentially a default judgment which is without precedential value 274 NLRB No. 24 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent con- stitute a unit apropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees of Respondent engaged in driving trucks or performing services described in Article II and Schedule "A" of the 1981-1983 Contract, but excluding all other employees, guards and su- pervisors as defined in Section 2(11) of the Act. Since 28 October 1981, and at all times material herein, the Charging Party has been the exclusive representative for purposes of collective bargaining for all employees in the unit described above, and has been, and is now, the exclusive representative of all the employees with respect to their rates of pay, wages, hours, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. The Respondent and the Union were parties to a collective-bargaining agreement in effect for the period 28 October 1981 to 30 April 1984 covering the wages, hours, and working conditions of the employees in the unit described above. The Re- spondent has failed to continue in full force and effect the terms and conditions of the collective- bargaining agreement described above by failing at all times since March 1983 to remit monthly health and welfare fund payments on behalf of employees as required by article XIX of the agreement and failing at all times since December 1983 to remit monthly pension payments as required by article XX of the agreement. Since about 28 October 1981, by agreements be- tween the Respondent, the Charging Party, and employees in the unit described above, the Re- spondent withheld from paychecks of employees membership dues the employees owed the Charg- ing Party. Since that date the Respondent remitted those dues to the Charging Party on a monthly basis. At all times since March 1983 the Respondent has failed to remit to the Charging Party the mem- bership dues it continued to deduct from employee paychecks, as described above, without having af- forded the Charging Party an opportunity to nego- tiate about such changes. Since 13 February 1984 the Charging Party has requested that the Respondent meet and negotiate the terms of a new collective-bargaining agree- ment . At all times since 13 February 1984 the Re- spondent has refused the Charging Party's requests to meet and negotiate a new agreement, and has re- fused to bargain with the Charging Party as the ex- clusive collective-bargaining representative of unit employees. On the basis of the foregoing, we find that the Respondent has, since about March 1983, refused to bargain with the Charging Party as the exclusive representative of the employees in the unit set forth above, and that by such refusal the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. John Mahoney Construction Company, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Excavating and Building Material Chauffeurs & Helpers Local Union No. 379, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. The appropriate collective-bargaining unit is: All full-time and regular part-time employees of Respondent engaged in driving trucks or performing services described in Article II and Schedule "A" of the 1981-1983 Contract, but excluding all other employees, guards and su- pervisors as defined in Section 2(11) of the Act. 4. Since 28 October 1981 the above-named labor organization has been and is now the exclusive rep- resentative of all employees in the appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing since about March 1983 to remit monthly health and welfare fund payments pursu- ant to article XIX of the then effective collective- bargaining agreement the Respondent has engaged in and is engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 6. By refusing since about December 1983 to remit monthly pension payments pursuant to article XX of the then effective collective-bargaining agreement the Respondent has engaged in and is engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 7. By refusing since about March 1983 to remit to Charging Party dues moneys withheld from em- ployee paychecks pursuant to agreements between the Respondent, the Charging Party, and unit em- ployees, the Respondent has engaged in and is en- gaging in unfair labor practices affecting commerce JOHN MAHONEY CONSTRUCTION CO within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 8. By refusing at all times since 13 February 1984 to meet with the Charging Party and negotiate the terms of a new collective-bargaining agreement the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) 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 designed to effectuate the policies of the Act. We shall order the Respondent, on request, to bargain collectively with the Charging Party as the exclusive representative of all employees in the unit. The Respondent shall be ordered to remit to the Charging Party all dues moneys withheld from employee paychecks, and to remit all health and welfare fund and pension fund payments due under the terms of articles XIX and XX of the collective- bargaining agreement described above, 3 with inter- est computed as set forth in Florida Steel Corp., 231 NLRB 651 (1977).4 ORDER The National Labor Relations Board orders that the Respondent, John Mahoney Construction Com- pany, Inc., Milton, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively, on request, with Excavating and Building Material Chauffeurs & Helpers Local Union No. 379, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America with respect to the rates of pay, wages, hours, and other terms and conditions of employment of the em- ployees in the appropriate unit. (b) Failing and refusing to remit health and wel- fare payments for the period commencing in March 1983 pursuant to article XIX of the agreement. 3 Because the provisions of employee benefit fund agreements are van- able and complex , the Board does not provide at the adjudicatory stage of a proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments We leave to the compliance stage the question of whether the Respondent must pay any additional amounts into the benefit funds in order to satisfy our "make-whole" remedy These addi- tional amounts may be determined, depending on the circumstances of each case, by reference to provisions in the documents governing the funds at issue and, where there are no governing provisions, to evidence of any loss directly attributable to the unlawful withholding action, which might include the loss of return on investment of the portion of funds withheld , additional administrative costs, etc , but not collateral losses Merryweather Optical Co, 240 NLRB 1213 (1979) 4 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 111 (c) Failing and refusing to remit pension plan payments for the period commencing in December 1983 pursuant to article XX of the agreement. (d) Failing and refusing to remit to the Union for the period commencing March 1983 dues moneys deducted from employee paychecks pursuant to agreements between the Respondent, the Union, and unit employees.(e) 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 neces- sary to effectuate the policies of the Act. (a) Remit health and welfare payments for the period commencing March 1983, as required by the terms of the collective-bargaining agreement then in effect, with interest as set forth in the remedy section of this decision. (b) Remit pension plan payments for the period commencing December 1983, as required by the terms of the agreement, with interest as set forth in the remedy section. (c) Remit to the Union dues moneys withheld from employee paychecks for the period commenc- ing March 1983, pursuant to agreements between the Respondent, the Union, and unit employees, with interest as set forth in the remedy section. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) On request, bargain with the Union as the ex- clusive representative of all employees in the unit described above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (f) Post at its facility in Milton, Massachusetts, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 1, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to 5 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ensure that the notices are not altered , defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to make health and welfare payments as required by article XIX of the collec- tive-bargaining agreement between ourselves and Excavating and Building Material Chauffeurs & Helpers Local Union No. 379, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America. WE WILL NOT refuse to make pension payments as required by article XX of the agreement. WE WILL NOT refuse to remit to the Union dues moneys deducted from our employees ' paychecks as required by agreement between ourselves, the Union, and unit employees. WE WILL NOT refuse to bargain collectively with the Union as the exclusive bargaining representa- tive in the unit described below with respect to wages, hours, and other terms and conditions of employment: All full-time and regular part -time employees of the Employer engaged in driving trucks or performing services described in Article II and Schedule "A" of the 1981-1983 Contract, but excluding all other employees, guards and su- pervisors as defined in Section 2(11) of the Act. WE WILL NOT in any like or related manner interfere with, restrain , or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make all health and welfare and pen- sion payments due, since March 1983 and Decem- ber 1983 , respectively, including interest. WE WILL reimburse the Union for all dues moneys withheld from employee paychecks but not remitted to the Union since March 1983 , with in- terest. WE WILL, on request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the unit described above with respect to wages, hours, and other terms and con- ditions of employment and, if an understanding is reached , embody it in a signed agreement. JOHN MAHONEY CONSTRUCTION COMPANY, INC.