Can-Do, Inc.

CAN-DO, INC. Can-Do, Inc. and The Carpenters District Council of Detroit, Wayne, Oakland, Macomb, St. Clair, Sanilac and Monroe Counties and Vicinities of the United Brotherhood of Carpenters and Join- ers of America, AFL-CIO. Case 7-CA-23057 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS Upon a charge filed by the Carpenters District Council of Detroit, Wayne, Oakland, Macomb, St. Clair, Sanilac and Monroe Counties and Vicinities of the United Brotherhood of Carpenters and Join- ers of America, AFL-CIO on 25 January 1984, the General Counsel of the National Labor Relations Board issued a complaint on 23 February 1984 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. Although properly served copies of the charge and complaint, the Company has failed to file and answer. On 12 April 1984 the General Counsel filed a Motion for Default Summary Judgment. On 17 April 1984 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 Company filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Default 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 true and may be so found by the Board." Further, the undisputed alle- gations in the Motion for Default Summary Judg- ment disclose that the Acting Regional Attorney, by letter dated 8 March 1984, notified the Compa- ny that unless an answer was filed by 21 March 1984, a Motion for Default Judgment would be filed. On 12 March 1984 the Respondent filed for bankruptcy under Chapter 7 in the United States Bankruptcy Court of Eastern District of Michigan, Southern Division, Case No. 84-00916. On 22 March 1984 counsel for the General Counsel ad- vised Interim Trustee George Lakmak and the at- 819 torney for the Debtor, Marion Bonds, both deemed agents of the Respondent, that unless an answer was filed by 5 April 1984, a Motion for Default Judgment would be filed. On 30 March 1984 the Regional Director for Region 7, acting as agent for the General Counsel, filed a Proof of Claim of the National Labor Relations Board and Notice of Pending Unfair Labor Practice Litigation with the United States Bankruptcy Court of Eastern District of Michigan, Southern Division, Case No. 84- 00916. In the absence of good cause being shown for the failure to file a timely answer, we grant the General Counsel's Motion for Default Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Michigan corporation, is a gen- eral contractor for construction and related jobs. Its place of business is located in Roseville, Michi- gan, where during the 12-month period ending 31 October 1983, a period representative of its oper- ation, the Company was a member in good stand- ing of the Associated General Contractors Associa- tion Detroit Chapter, Inc., a multiemployer collec- tive-bargaining association. The National Labor Relations Board has asserted jurisdiction over member-employers based on $50,000 annual nonre- tail direct inflow and outflow jurisdictional stand- ards including Parton-Mallow Company, Oak Park, Michigan; Davis & Armstrong, Inc., Southfield, Michigan; and Walbridge Aldinger Co., Livonia, Michigan. We find that the Company is an employer en- gaged in commerce within the meaning of Section 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 A. The Unit and the Union 's Representative Status The Respondent is party to a collective-bargain- ing agreement with the Union, effective from 1 June 1982 to 31 May 1984. Phillip Ferraro, the Re- spondent's vice president, granted a "Power of At- torney" 21 October 1981 to the Associated General Contractors of America Detroit Chapter, Inc. (AGC), to enable AGC to negotiate on its behalf and enter into collective-bargaining agreements with various labor organizations including the 279 NLRB No. 108 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. The current collective-bargaining agree- ment is the product of such negotiations. The Union is the exclusive collective-bargaining repre- sentative for the following unit of the Respondent's employees: All carpentry employees employed by Re- spondent at or out of its facility at 25200 Chip- pendale, Roseville, Michigan. The Union has been recognized as the exclusive collective-bargaining representative of the employ- ees in the unit. Such recognition has been em- bodied in successive collective-bargaining agree- ments, including the current one. B. The 8(a)(5) and (1) Violations Since about 15 February 1983 the Respondent has failed and refused to make payments to various fringe benefit funds, except for the months of May, June, and August 1983, as required by article V of the current collective-bargaining agreement. In ad- dition, since that date, the Respondent has failed to pay liquidated damages on late and unpaid fringe benefit fund payments as authorized by article V, section F of the collective-bargaining agreement. The Respondent has also refused and failed since 15 February 1983 to provide the Union with monthly fringe benefit fund reports due on the 15th of each month pursuant to article V, section G of the collective-bargaining agreement. The Respond- ent has also refused since 11 January 1984 to pro- vide the Union with sufficient information to con- duct meaningful audit of the Respondent's records from 1 January 1983 to date, which it sought in order to police and administer the collective-bar- gaining agreement pursuant to article IV, section E. We find that the Respondent, by failing and re- fusing since 15 February 1983 to make payments to various fringe benefit funds and to pay liquidated damages on late and unpaid fringe benefit fund payments, has violated Section 8(a)(5) and (1) of the Act.' We also find that by failing and refusing to pro- vide the Union with monthly fringe benefit fund reports the Respondent has violated Section 8(a)(5) and (1) of the Act. We further find that the Respondent's failure and refusal to provide the Union with sufficient infor- mation to conduct a meaningful audit to police and administer the collective-bargaining agreement is violative of Section 8(a)(5) and (1) of the Act. ' In the recently issued Rapid Fur Dressing, 278 NLRB 905 (1986), the majority rejected the same argument raised by the dissent here See par- ticularly fn 4 of that Decision and Order CONCLUSIONS OF LAW 1. By failing and refusing to make payments to various fringe benefit funds as required by article V of the current collective-bargaining agreement, the Company has engaged 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. 2. By failing and refusing to pay liquidated dam- ages on late or unpaid fringe benefits as required by article V, section F of the current collective- bargaining agreement, the Respondent has engaged 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. 3. By failing and refusing to provide the Union with monthly fringe benefit fund reports as re- quired by article V, section G, the Respondent has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and and (7) Section 2(6) of the Act. 4. By failing and refusing to provide the Union with sufficient information to conduct a meaningful audit to police and administer the collective-bar- gaining agreement, the Respondent has engaged 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 necessary to effectuate the policies of the Act. We have found that the Respondent unlawfully failed to make payments into various fringe benefit funds established for the benefit of employees in the bargaining unit and unlawfully failed to pay liq- uidated damages on late and unpaid fringe benefits as required by the collective-bargaining agreement. We shall therefore order the Respondent to trans- mit the required payments and required liquidated damages to fringe benefit funds. The exact amounts of such payments will be determined at the compli- ance stage, 2 consistent with the Bankruptcy 2 Because the provisions of employee benefit fund agreements are van- able and complex, the Board does not provide at the adjudicatory of a proceeding for the addition of interest at a fixed rate on unlawfully with- held fund payments We leave to the compliance stage the question of whether the Respondent must pay any additional amounts into the fringe benefits funds in order to satisfy our "make-whole" remedy These addi- tional amounts may be determined, depending on 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 unlawful withholding action, which might in- clude the loss of return on investment of the portions of funds withheld, additional administrative costs, etc., but not collateral losses Merry- weather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979) CAN-DO, INC Court's resolution of the Respondent 's petition.3 We shall also order the Respondent to reimburse its employees for any expenses ensuing from its un- lawful failure to make payments to the fringe bene- fit funds, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn . 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981 ). Backpay shall be made in a manner con- sistent with the Board's policy stated in Ogle Pro- tection Service , 183 NLRB 682 (1970), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). We shall also order the Respondent to file the monthly fringe benefit funds reports due on the 15th of each month, including those not filed since 15 February 1983. Finally, we shall order the Respondent to pro- vide sufficient information to allow the Union to conduct a meaningful audit of the Respondent's records from 1 January 1983 to the present. ORDER The National Labor Relations Board orders that the Respondent, Can-Do, Inc., Roseville, Michi- gan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to make required contri- butions to various fringe benefit funds as required by its collective-bargaining agreement with the Union. (b) Failing and refusing to pay liquidated dam- ages on late and unpaid fringe benefit funds pay- ments as required by the collective-bargaining agreement. (c) Failing to file monthly fringe benefit fund re- ports due on the 15th of each month as required by the collective-bargaining agreement. (d) Failing to provide sufficient information to the Union to allow it to conduct a meaningful audit to police and administer the collective-bargaining agreement. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 8 Consistent with the Supreme Court's opinion in NLRB Y Bildisco & Bildisco, 465 U S 513 ( 1984), our remedy extends only to 12 March 1984, the date the Respondent filed its Chapter 7 bankruptcy petition B,ldctco held, in relevant part, that an employer does not violate Sec 8 (aX5) and (1) by changing the terms and conditions of a collective-bargaining agree- ment during the period between the filing of a bankruptcy petition and the bankruptcy court's determination whether the collective-bargaining agreement may be rejected We are mindful that the Bankruptcy Amendments and Federal Judge- ship Act of 1984, enacted by Congress 10 July 1984, modified Bddisco The statute does not apply, however , to cases such as this where the bankruptcy petition was filed prior to its enactment Pub L 98-353 § 541, 98 Stat 333, 390-391 (1984) 821 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make the payments to the various fringe ben- efit trust funds required by its 1 June 1982 to 31 May 1984 collective-bargaining agreement with the Union, as well as liquidated damages on late and unpaid fringe benefit fund payments, as provided in the remedy section of this decision. (b) Make unit employees whole for any loss of benefits suffered as a result of the Respondent's failure to make the fringe benefit fund payments re- quired by its collective-bargaining agreement with the Union, as provided in the remedy section of this decision. (c) File the monthly fringe benefit fund reports on the 15th of each month as required by the col- lective-bargaining agreement, including those not filed since 15 January 1983. (d) Provide the Union with sufficient information to conduct a meaningful audit of the Respondent's records from 1 January 1983 to the present. (e) Post at its facility in Roseville, Michigan, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 7, 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 ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting. For the reasons set forth in my dissent in Rapid Fur Dressing, 278 NLRB 905 (1986), 1 dissent from my colleagues' grant of the Motion for Default Summary Judgment. The Respondent is alleged to have violated Section 8(a)(5) and (1) by refusing to make payments to various fringe benefit funds, re- fusing to pay liquidated damages on late and unpaid fringe benefit fund payments, and reffusing to provide the Charging Party wiht the contrac- tually required monthly fringe benefit fund reports and sufficient information to enable it to conduct an audit. There is insufficient evidence before us to find that the Respondent has engaged in conduct * 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 Nation- al 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 " 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reflecting a substantial repudiation of the contract or of its bargaining obligations. Without more, the Respondent's refusal to make payments to unspeci- fied fringe benefit funds, to pay liquidated damages, to provide monthly reports and provide sufficient information for an audit, amounts to nothing more than a contract violation.' The Board is here, once again, allowing itself to be used as a collection agency. Accordingly, I would deny the Motion for Default Summary Judgment. i With respect to the Respondent 's refusal to provide sufficient infor- mation for an audit, without specific evidence as to what information was requested , the allegations also fail to establish that the Respondent violat- ed its statutory duty to provide information Cf My separate opinion in Can-Do, Inc, 279 NLRB 849, issued this date 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 fail and refuse to make required contributions to various fringe benefit funds as re- quired by our collective-bargaining agreement with the Union. WE WILL NOT fail and refuse to pay liquidated damages on late and unpaid fringe benefit fund payments as required by our collective-bargaining agreement. WE WILL NOT fail to provide the Union with monthly fringe benefit fund reports due on the 15th of each month as required by the collective-bar- gaining agreement. WE WILL NOT fail to provide sufficient informa- tion to the Union to allow it to conduct a meaning- ful audit to police and administer our collective- bargaining agreement . The appropriate unit is: All carpentry employees employed by Re- spondent at or out of its facility at 25200 Chi- pendale, Roseville, Michigan. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make the payments to the various fringe benefit trust funds as required by our 1 June 1982 to 31 May 1984 collective-bargaining agree- ment with the Union, as well as liquidated damages on late and unpaid fringe benefit fund payments. WE WILL make unit employees whole for any loss of benefits suffered as a result of our failure to make the fringe benefit fund payments required by our collective-bargaining agreement with the Union. WE WILL file the monthly fringe benefit fund re- ports on the 15th of each month as required by the collective-bargaining agreement , including those not filed since 15 February 1983. WE WILL provide the Union sufficient informa- tion on request to conduct a meaningful audit of our records from 1 January 1983 to the present. CAN-DO, INC.