Can-Do, Inc.

CAN-DO, INC. Can-Do, Inc. and Reinforcing Iron Workers' Local 426 Fringe Benefit Funds and Reinforcing Iron Workers' Local 426 of the International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Party to the Con- tract. Case 7-CA-22703 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS Upon a charge filed by the Reinforcing Iron Workers' Local 426 Fringe Benefit Funds, on 11 October 1983, and amended on 22 November 1983, the General Counsel of the National Labor Rela- tions Board issued a complaint 29 November 1983 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 an answer. On 24 January 1984 the General Counsel filed a Motion for Default Summary Judgment. On 26 January 1984 the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be grant- ed. The Company filed no response. The allega- tions 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 16 December 1983, notified the Re- spondent that unless an answer was filed by 29 De- cember 1983, a Motion for Default Judgment would be filed. Subsequent to the filing of the Motion for De- fault Summary Judgment in the present case, the General Counsel filed a Motion for Default Sum- mary Judgment in another case, Can-Do, Inc., Case 7-CA-23057, which involves the same Respondent and similar unanswered allegations brought by a 849 different union. In her motion in Case 7-CA- 23057, the General Counsel stated that 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. The General Counsel further stated that on 30 March 1984 the Regional Director for Region 7, acting as agent for the Gen- eral 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 Barton Mallow Company of Oak Park, Michigan; Davis & Armstrong, Inc. of Southfield, Michigan; and Walbridge Aldinger Co. of Livonia, Michigan. We find that the Respondent 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 Iron Workers Local 426, effec- tive from 1 June 1982 to 31 May 1984. Phillip Fer- raro, Respondent's vice president, granted 21 Octo- ber 1981 a "Power of Attorney" to the Associated General Contractors of America Detroit Chapter, Inc. (AGC), to enable AGC to negotiate on its 279 NLRB No. 111 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf and enter into collective-bargaining agree- ments with various labor organizations, including the Union. The Union is the exclusive collective- bargaining representative for the following unit of the Respondent's employees: All employees, including journeymen, fore- men, and apprentices, who are employed by the Respondent who are performing work in connection with field fabrication, past tension- ing, prestressing of, handling by power, raking, sorting, cutter, bending, hoisting, placing, burning, welding and tying of all materials used to reinforce concrete construction; and realigning of reinforcing steel, wire mesh and placing steel dowels, as well as refastening and resetting same while concrete is being poured; and reinforcing steel and wire mesh in road- ways and sidewalks in connection with new construction, also erection and fabrication, prestressed and precast joists, beams, columns, and slabs, walls, roofs, tanks, man-holes, trenches and covers; and the handling and placing of J or Jack bars on slip form con- struction; the placing of all clips, bolts and steel rods, and wire fabric or mesh pertaining to gunite construction, and the placing of Steel Tex or Paper Back mesh used primarily for re- inforcing steel; and those employees engaged in shear connection stud welding, unloading of necessary cables (lead, ground and gun), timers, tools and materials from truck at job site: hook-up of welding equipment from gen- erator through timers to welding gun; and start-up, operation and shut down of all power equipment utilized in shear connector stud welding; and layout and marking of beams, in- cluding cleaning and grinding of beams when necessary; and placing of ceramics (ferrules) with clipping hammer; and breakdown and stowing; but excluding guards and supervisors as defined in the Act. 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 June 1983 the Respondent has re- fused to make payments to various fringe benefit funds as required by article IV of the current col- lective-bargaining agreement . In addition, the Re- spondent has refused to pay liquidated damages on late and unpaid fringe benefit payments as author- ized by article IV, section 10 of the collective-bar- gaining agreement. Since between 11 July and 31 October 1983 the Union has requested, and since 1 September 1983 the Respondent has refused to fur- nish various documents which the Charging Party, pursuant to article IV, section 11 of the collective- bargaining agreement , sought in order to conduct an audit of the Respondent's records. The information requested was as follows: 1. Each employee's payroll records (regard- less of craft or occupation), provided such records indicate the employee's social security number, occupation, straight time and over- time hours worked, rate of pay, gross pay, F.I.C.A. deductions, withholding tax deduc- tion, and other deductions and net pay. 2. Payroll journals (registers) to date for each year to date. 3. Check registers (cash disbursement books) for each year to date. 4. Cash receipts journals for each year to date. 5. General ledger for each year to date. 6. All workers' compensation forms and re- ports. 7. All time or clock cards. 8. Copy of all W-2 forms filed for each em- ployee. 9. Copy of W-3 form filed for each year. 10. Copy of 941 forms for each quarter. 11. Copy of 940 each year. 12. Copy of MESC 1020 forms for each quarter. 13. Contributions reports for each month and cancelled checks supporting payment of same. The Charging Party requested the information in order to police the fringe benefit provisions of the collective-bargaining agreement between the Re- spondent and the Union. We find that the Respondent, by refusing 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 further find that the Respondent's refusal to provide the Charging Party with the information it sought in order to police the fringe benefit provi- sions of the collective-bargaining agreement is vio- lative 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. CAN-DO, INC. 851 CONCLUSIONS OF LAW By refusing to make payments to various fringe benefit funds, as required by article IV of the cur- rent collective-bargaining agreements; by failing to pay liquidated damages on late or unpaid fringe benefit fund payments; and by failing to provide in- formation necessary for, and relevant to, policing the fringe benefit fund provisions of its collective- bargaining agreement with the Union, the Re- spondent has engaged in unfair labor practices af- fecting 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 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 benefit fund payments as required by its collective-bargain- ing agreement with the Union. We shall therefore order the Respondent to transmit the required con- tributions and required liquidated damages to the fringe benefit funds. The exact amounts of such payments will be determined at the compliance stage.2 We shall also order the Respondent to re- imburse its employees for any expenses ensuing from its unlawful failure to make payments to the fringe benefit 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 consistent with the Board policy stated in Ogle Protection Service, 183 NLRB 682 (1970), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). Finally, we shall order the Respondent to pro- vide the Charging Party with the information re- quested between 11 July and 31 October 1983, de- scribed in section II,B, above.3 2 Because the provisions of employee benefit fund agreements are vari- 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, 1216 fn 7 (1979) 8 As noted above, in another case issued this day, Can-Do, Inc., 279 NLRB 819, the Respondent is alleged to have filed a bankruptcy petition 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 the Reinforcing Iron Workers' Local 426 Fringe Benefit Funds as required by its collec- tive-bargaining agreement with the Union. (b) Failing and refusing to pay liquidated dam- ages on late and unpaid fringe benefit fund pay- ments to the Reinforcing Iron Workers' Local 426 Fringe Benefit Funds as required by the collective- bargaining agreement. (c) Failing to provide the information requested between 11 July and 31 October 1983 by the Rein- forcing Iron Workers' Local 426 Fringe Benefit Funds which is necessary for, and relevant to, po- licing the fringe benefit fund provisions of the col- lective-bargaining agreement. (d) 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. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make payments to the Reinforcing Iron Workers' Local 426 Fringe Benefit Funds required by its 1 June 1982 to 31 May 1984 collective-bar- gaining agreement with the Union, as well as liqui- dated 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) On request, provide the Reinforcing Iron Workers' Local 426 Fringe Benefits Funds the fol- lowing information necessary for, and relevant to, policing the fringe benefit fund provisions of the collective-bargaining agreement. after the Motion for Default Summary Judgment was filed in the instant case There, like here, the Respondent filed no answer to the allegations Accordingly, the allegations are deemed to be admitted to be true There is no reason to doubt the veracity of the allegations, however, since there is no allegation of bankruptcy in the present case, and because the Charg- ing Parties are not the same in the two cases, we shall not make any find- ings about the effect the filing of a bankruptcy petition would have on the present case. Rather, we leave that matter to the compliance stage of these proceedings, except to note that, if a bankruptcy petition has been filed herein , the remedy shall be limited in the same manner as set forth in Can-Do. Inc., 279 NLRB 819 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Each employee's payroll records (regard- less of craft or occupation), provided such records indicate the employee's social security number, occupation, straight time and over- time hours worked, rate of pay, gross pay, F.I.C.A. deductions, withholding tax deduc- tion, and other deductions and net pay. 2. Payroll journals (registers) to date for each year to date. 3. Check registers (cash disbursement books) for each year to date. 4. Cash receipts journals for each year to date. 5. General ledger for each year to date. 6. All workers' compensation forms and re- ports. 7. All time or clock cards. 8. Copy of all W-2 forms filed for each em- ployee. 9. Copy of W-3 form filed for each year. 10. Copy of 941 forms for each quarter. 11. Copy of 940 each year. 12. Copy of MESC 1020 forms for each quarter. 13. Contributions reports for each month and cancelled checks supporting payment of same. (d) 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. (e) 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, concurring in part and dis- senting in part. I agree with my colleagues that the Respondent violated Section 8(a)(5) and (1) by failing to pro- vide the specifically requested audit information. I base my conclusion only on the fact that the Re- spondent has a statutory obligation to furnish the Union, on request, information relevant and neces- 4 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 " sary to enable it to intelligently carry out its duties as the employees' collective-bargaining representa- tive. See Michigan Drywall Corp., 232 NLRB 120 (1977). For the reasons set forth in my dissent in Rapid Fur Dressing, 278 NLRB 905 (1986), I dissent from the majority's granting of Default Summary Judg- ment with respect to the allegation that the Re- spondent violated Section 8(a)(5) and (1) by refus- ing to make payments to various fringe benefit funds and refusing to pay liquidated damages on late unpaid fringe benefit payments as required by the collective-bargaining agreement . The evidence before us does not meet the General Counsel's burden of establishing that the Respondent has en- gaged in conduct reflecting a substantial repudi- ation of its contractual or bargaining obligations. Accordingly, I would deny the General Counsel's Motion for Default Summary judgment as it relates to these allegations. 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 the Reinfrocing Iron Workers' Local 426 Fringe Benefit Funds as required 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 to the Reinforcing Eron Workers' Local 426 Fringe Benefit Funds as required by our col- lective-bargaining agreement. WE WILL NOT fail to provide the information re- quested between 11 July and 31 October 1983 by the Reinforcing Iron Workers' Local 426 Fringe Benefit Funds which is necessary for, and relevant to, policing and administering our collective-bar- gaining agreement with the Union. The appropriate unit is: All employees, including journeymen, fore- men, and apprentices, who are employed by the Respondent who are performing work in connection with field fabrication, past tension- ing, prestressing of, handling by power, raking, sorting, cutter, bending, hoisting, placing, burning, welding and tying of all materials used to reinforce concrete construction; and realigning of reinforcing steel, wire mesh and CAN-DO, INC placing steel dowels, as well as refastening and resetting same while concrete is being poured; and reinforcing steel and wire mesh in road- ways and sidewalks in connection with new construction, also erection and fabrication, prestressed and precast joists, beams, columns, and slabs, walls, roofs, tanks, man-holes, trenches and covers; and the handling and placing of J or Jack bars on slip form con- struction; the placing of all clips, bolts and steel rods, and wire fabric or mesh pertaining to gunite construction, and the placing of Steel Tex or Paper Back mesh used primarily for re- inforcing steel; and those employees engaged in shear connection stud welding, unloading of necessary cables (lead, ground and gun), timers, tools and materials from truck at job site: hook-up of welding equipment from gen- erator through timers to welding gun; and start-up, operation and shut down of all power equipment utilized in shear connector stud welding; and layout and marking of beams, in- cluding cleaning and grinding of beams when necessary; and placing of ceramics (ferrules) with clipping hammer; and breakdown and stowing; but excluding 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 exer- cise of the rights huaranteed you by Section 7 of the Act. WE WILL make the payments to the Reinforcing Iron Workers Local 426 Fringe Benefit Funds re- quired by our 1 June 1982 to 31 May 1984 collec- tive-bargaining agreement with the Union, as well as liquidated damages on any late and unpaid fringe benefit fund payments. 853 WE WILLmake 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, on request, provide the Reinforcing Iron Workers' Local 426 Fringe Benefits Funds with the following information necessary for, and relevant to, policing the fringe benefit fund provi- sions of the collective-bargaining agreement: 1. Each employee's payroll records (regard- less of craft or occupation), provided such records indicate the employee's social security number, occupation, straight time and over- time hours worked, rate of pay, gross pay, F.I.C.A. deductions, withholding tax deduc- tion, and other deductions and net pay. 2. Payroll journals (registers) to date for each year to date. 3. Check registers (cash disbursement books) for each year to date. 4. Cash receipts journals for each year to date. 5. General ledger for each year to date. 6. All workers' compensation forms and re- ports. 7. All time or clock cards. 8. Copy of all W-2 forms filed for each em- ployee. 9. Copy of W-3 form filed for each year. 10 Copy of 941 forms for each quarter. 11 Copy of 940 each year. 12 Copy of MESC 1020 forms for each quarter. 13. Contributions reports for each month and canceled checks supporting payment of same. CAN-DO, INC.