C.S.E. Contract Cleaning

C.S.E. CONTRACT CLEANING C.S.E. Contract Cleaning and Service Employees International Union, Local 254, AFL-CIO. Case 1-CA-23800 14 April 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT Upon a charge filed by Service Employees Inter- national Union, Local 254, AFL-CIO (the Union) 30 April 1986 and an amended charge filed 12 June 1986„ the General Counsel of the National Labor Relations Board issued a complaint 23 June 1986 against C.S.E. Contract Cleaning (the Company or the Respondent) alleging that it has violated Sec- tions 8(a)(5) and (1) and 8(d) of the National Labor Relations Act., Although properly served copies of the charge and complaint, the Company has failed to file an answer, On 9 February' 1987 the General Counsel filed a Motion for Summary Judgment. On 12 February 1987 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 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." Further, the undisputed allegations in the Motion for Summary Judgment disclose that by letter dated 25 August 1986 the Company was notified that unless an answer was received by, 8 September 1986 a Motion for Sum- mary Judgment 'would be filed. In addition, on 9 October 1986, copies of the charge, amended charge, complaint, and notice of hearing were hand-delivered to the Company. 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 Judgment. Oil the entire record, the Board makes ' the fol- lowing 283 NLRB No. 95 FINDINGS OF FACT 1. JURISDICTION 641 The Company, a corporation with an office and place of business in Brookline, Massachusetts, is en- gaged in the business of providing cleaning services to the New England Conservatory of Music. - During the calendar year ending 15 June 1986, the Company provided services valued in excess of $50,000 directly to the New England Conservatory of Music. During the calendar year ending 15 June 1986, the New England Conservatory of Music de- rived gross revenues in excess of $1 million, which amount excludes contributions which, because of limitation by the grantor, are not available for op- erating expenses. During the calendar year ending 15 June 1986, the New England Conservatory of Music received goods and materials at its Boston, Massachusetts location valued in excess of $5000 from points directly outside the Commonwealth of Massachusetts. We find,that the Company is an em- ployer engaged 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 Sec- tion 2(5) of the Act. H. ALLEGED UNFAIR LABOR PRACTICES A. The Unit and the Union's Representative Status The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b), of the Act: All full-time and regular part-time employ- ees employed by the Respondent engaged in the Contract Building Cleaning Industry, wherever employed in the covered territory performing janitorial services, including all janitors, porters, cleaners, doormen, elevator operators, starters, handymen and groundsmen, maintenance tradesmen if not previously cov- ered by agreements with other unions, but ex- cluding all executive employees, salaried su- pervisors, sales employees, clerical employees, hourly paid supervisors; foremen, and employ- ees who do not regularly work in excess of fif- teen hours per week. Since 1981 the Union has been the designated ex- clusive collective-bargaining representative 'of the employees in the unit, and since 1981 the Union has been recognized as such representative by the Respondent. Such recognition has been embodied in successive collective-bargaining agreements, the 642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD most recent of which 'is effective by its terms for the period of 1 September 1984 to 31 August 1987. At all times since 1981 the Union, by virtue of Section 9(a) of the Act, has been , and is, the exclu- sive representative of the unit employees for, the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. B.'The Refusal to Bargain About January 1986 the Respondent failed to continue in full force and effect all the terms and conditions of the 1984-1987 ,contract by failing and .refusing -to- remit contributions to the Service Em- ployees Pension Fund as required by article XIII of the 1984-1987 contract, payments for employee health benefits to the Boston Building Service Em- ployees Trust Fund as ' required by article XII of the 1984-1987 contract, ' and union dues to the Union as required by article XXXIII of the 1994- 1987 contract. - The terms -and conditions ' of the agreement which ' the Respondent ' failed to continue in full force and effect , are terms and conditions of em- ployment of - unit employees and ' are mandatory subjects of bargaining. The Respondent engaged in such conduct without prior , notice to and without having afforded the Union the opportunity to ne- gotiate and bargain as the exclusive representative of the Respondent's employees. We fmd that the Respondent has failed and refused to bargain col- lectively with the representative of its employees and has thereby violated Sections 8(a)(5) and (1) and 8(d) of the Act. CONCLUSIONS OF LAW By failing and refusing to remit contributions to the- Service Employees Pension Fund, payments for employee health benefits to the Boston Building Service Employees Trust Fund , and union dues to the, Union, as required by the 1984-1987 contract, the; .Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1), Section 8(d), 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, inter , alia, order the - Respondent to make all contributions to the Service Employees Pension Fund and payments for employee health benefits to the Boston Building Service Employees Trust Fund required by its collective-bargaining agreement with the Union.' ' We shall also order the Respondent to reimburse 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). All pay- ments to employees shall be made with interest as prescribed in Florida Steel Corp, 231 NLRB 651 (1977). We shall also-order the Respondent to pay union dues to the Union, 2 with interest as pre- scribed in Florida Steel Corp., supra.3 ORDER The National'Labor Relations Board-orders that the Respondent, C.S.E. Contract Cleaning, Brook- line, Massachusetts, its 'officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to make contributions to the Service Employees Pension Fund as required by its 1984-1987 contract with the Union. (b) Failing and refusing to make payments for employee health benefits to the Boston Building Service Employees Trust' Fund as required by its 1984-1987 contract with the Union. (c) Failing and refusing to pay union dues to the Union as required by its 1984-1987 contract with the Union. (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. 1 Because the provisions of employee benefit fund agreements are vari- able and , complex, the Board does not provide for the addition of a-fixed rate of interest on-unlawfully withheld fund payments at the adjudicatory stage of a proceeding . We leave to the compliance stage the question whether the Respondent must pay any additional amounts into the benefit funds in order to satisfy our "make-whole" remedy. Depending upon the circumstances of each case, these additional amounts maybe determined by reference to provisions in the documents governing the funds ,at issue and, where there are no governing provisions, by evidence of any losses directly attributable to the unlawful withholding , which might include the loss of return on investment'of the portion of funds withheld, addi- tional administrative `costs, etc., but not collateral losses. Merryweather Optical Co., 24Q NLRB 1213, 1-216 fa. 7 (1979). 2 It is not clear from the complaint whether the Respondent 's remis- sion of union dues to'the Union, as required by art. XXXIII of the con- tract, is pursuant to checkoff authorizations signed by the unit employees We therefore shall require the Respondent to remit such dues to the Union only if the employees have executed the appropriate checkoff au- thorizations. 3 The General Counsel has requested a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Re- spondent 'under the Federal Rules of Civil Procedure subject to the su- pervision of the United States court of appeals enforcing this Order. Under the circumstances of` this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel' s request C.S.E. CONTRACT CLEANING (a) Make contributions to the Service Employees Pension Fund required by its 1984-1987 contract with the Union, as provided in the remedy section of this decision. (b) Make payments for employee health benefits to the Boston Building Service Employees Trust Fund required by its 1984-1987 contract with the Union, as provided in the remedy section of this decision. (c) Pay union dues to the Union as required by its 1984-1987 contract with the Union, as provided in the remedy section of this decision. (d) 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. (e) 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 amounts due under the terms of this Order. (f) Post at its facility in Brookline, Massachusetts, copies of the attached notice marked "Appendix."4 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 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. 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." APPENDIX 643 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 contribu•. tions to the Service Employees Pension Fund as re- quired by our 19841987 contract with the Union. WE WILL NOT fail and refuse to make payments for employee health benefits to the Boston Building Service Employees Trust Fund as required by our 1984-1987 contract with the Union. WE WILL NOT fail and refuse to pay union dues to the Union as required by our 19 `84-1987 contract with the ,Union. 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 contributions to the Service Em- ployees Pension Fund as required by our 1984- 1987 contract with the Union. WE WILL make payments for employee health benefits to the Boston Building Service Employees Trust Fund as required by our 1984-1987 contract with the Union. WE WILL pay union dues to the Union as re- quired by our 1984-1987 contract with, the Union. WE WILL make our unit employees whole for any loss of benefits suffered as a result of our fail- ure to make the fringe benefit payments required by our collective-bargaining agreement with the Union. The appropriate unit is: All full-time and regular part-time employ- ees employed by us engaged in the Contract Building Cleaning Industry, wherever em- ployed in the covered territory performing janitorial services, including all janitors, por- ters, cleaners, doormen, elevator operators, starters, handymen and groundsmen, mainte- nance tradesmen if not previously covered by agreements with other unions, but excluding all executive employees, salaried supervisors, sales employees, clerical employees, hourly paid supervisors, foremen, and employees who do not regularly work in excess of fifteen hours per week. C.S.E. CONTRACT CLEANING