W. S. Smith Electric, Inc.

W. S. SMITH ELECTRIC W. S. Smith Electric, Inc. and Local Union No. 692, International Brotherhood of Electrical Workers, AFL-CIO. Case 7-CA-27671 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT Upon a charge filed by Local Union No. 692, International Brotherhood of Electrical Workers, AFL-CIO (the Union) on January 21, 1988, and amended on February 24, 1988, the General Coun- sel of the National Labor Relations Board issued a complaint February 25, 1988, against W. S. Smith Electric, Inc. (the Respondent) alleging that it has violated Section 8(a)(5), (3), and (1) of the National Labor Relations Act. Although properly served copies of the charges and complaint, the Respond- ent has failed to file an answer. On April 11, 1988, the General Counsel filed a Motion for Summary Judgment . On April 13, 1988, the Board issued an order transferring the proceed- ing 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 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 14 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 14 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 Summary Judgment dis- close that the Acting Regional Attorney, by letter dated March 11, 1988, notified the Respondent that unless an answer was received by March 25, 1988, a Motion for Default Judgment would be filed. 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 insofar as the complaint alleges that the Respond- ent violated Section 8(a)(5) and (1) of the Act, by failing to make the fringe benefit fund contributions required under its collective-bargaining agreement with the Union and by failing to remit dues it had deducted from its employees' wages to the Union as required under the dues-checkoff provisions of 519 this collective-bargaining agreement, during the period from August 3 to September 3, 1987. The complaint additionally alleges, in paragraphs 16 and 18, that the Respondent violated Section 8(a)(3) and (1) of the Act by continuing to deduct dues from its employees' wages after the collective- bargaining agreement was no longer in effect and by withholding this money from its employees. We find this complaint allegation to be so ambiguous that we are unable to determine whether it states a cause of action, because the complaint does not allege sufficient facts to allow the Board to decide how the Respondent violated the Act by this con- duct. For example, the complaint does not allege that the employees' dues-checkoff authorizations were revoked or otherwise expired when the con- tract was no longer in effect. Thus, it is unclear whether, under the theory of the complaint, it is al- leged that the Respondent should have ceased de- ducting dues from its employees' wages or whether it should have deducted the dues but remitted the money to the Union. Accordingly, we deny the Motion for Summary Judgment insofar as it alleges that the Respondent violated Section 8 (a)(3) and (1) of the Act by continuing to deduct dues from its employees' wages after the collective-bargaining agreement was no longer in effect . We shall remand the case to the Region for further appro- priate action, including, if necessary, a hearing before an administrative law judge on the issue whether the Respondent violated the Act by con- tinuing to deduct dues from its employees' wages when the collective-bargaining agreement was no longer in effect and by retaining this money for itself. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, a Michigan corporation with its principal office and place of business in Clare, Michigan, is an electrical contractor in the building and construction industry . During the year ending December 31, 1987, the Respondent performed services valued in excess of $50,000 for B & B Contractors and Developers, Inc., a company en- gaged in the building and construction industry that annually performs services outside the State of Michigan valued in excess of $50,000. We find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. 290 NLRB No. 65 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. 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 employees of the Respondent performing electrical work at the Big Wheel Department Store jobsite in Standish, Michigan; but ex- cluding guards and supervisors as defined in the Act. On August 3, 1987, the Respondent executed a letter of assent to the terms of the current collec- tive-bargaining agreement between the Union and the Bay City Division, Michigan Chapter, National Electrical Contractors Association, Inc., covering the employees in the unit. This letter of assent was effective by its terms for the period August 3, 1987, to September 3, 1987. For the period August 3 to September 3, 1987, the Union, by virtue of Section 8(f) of the Act, was the exclusive representative of the unit employees for the purposes of collective bargaining with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment. B. The Refusal to Bargain For the period of August 3 to September 3, 1987, the Respondent failed to make any contribu- tions to fringe benefit funds on behalf of the unit employees as required by the collective-bargaining agreement. The agreement provides that the Re- spondent shall make contributions to certain fringe benefit funds, including vacation, pension, health and welfare, and apprenticeship funds. For the period of August 3 to September 3, 1987 , the Re- spondent deducted dues from the unit employees' wages, but failed to remit these dues to the Union as required by the collective-bargaining agreement. The Respondent failed to make fringe benefit fund contributions and failed to remit checked off dues to the Union as required by the agreement without giving the Union notice or an opportunity to bargain about this conduct. We find that the Re- spondent has failed and refused to bargain collec- tively with the representative of its employees and has thereby violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By failing and refusing to make fringe benefit fund contributions on behalf of its unit employees and by failing and refusing to remit checked off dues to the Union as required by its collective-bar- gaining agreement with the Union , the Respondent has engaged 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. 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 the contributions to fringe benefit funds required by its collective-bargaining agreement with the Union." We shall also order the Respond- ent to reimburse its employees for any expenses en- suing from its unlawful failure to make contribu- tions 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 New Horizons for the Retarded.2 We shall also order the Respondent to remit to the Union the dues it deducted from its employees' wages while the collective-bargaining agreement was in effect, with interest as prescribed in New Horizons for the Retarded, supra. We shall further order the Respondent to post an appropriate notice to employees. As noted above, we shall also remand this case for hearing on the limited issue whether the Respondent violated the Act by con- tinuing to deduct dues from its employees' wages when the collective-bargaining agreement was no longer in effect and by retaining this money for itself. ORDER The National Labor Relations Board orders that the Respondent, W. S. Smith Electric, Inc., Clare, Michigan, its officers, agents, successors, and as- signs, shall 1. Cease and desist from ' 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 to satisfy our "make-whole" remedy . Depending on the circum- stances of each case, these additional amounts may be determined by ref- erence to provisions in the documents governing the funds at issue and, when there are no governing provisions, by evidence of any losses direct- ly attributable to the unlawful withholding , which might include the loss of return on investment of the portion of funds withheld, additional ad- ministrative costs, etc., but not collateral losses. Merryweather Optical Co.. 240 NLRB 1213, 1216 In. 7 (1979). 2 283 NLRB 1173 (1987). Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C. § 6621 W. S. SMITH ELECTRIC (a) Failing and refusing to make fringe benefit fund contributions as required by its collective-bar- gaining agreement with the Union. (b) Failing and refusing to remit checked off dues to the Union as required by its collective-bar- gaining agreement with the Union. (c) 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 all the contributions to fringe benefit funds required by its collective-bargaining agree- ment with the Union, as provided in the remedy section of this decision. (b) Remit to the Union the dues it deducted from its employees' wages while the collective-bargain- ing agreement was in effect, as provided in the remedy section of this decision. (c) Make unit employees whole for any loss of benefits or other expenses suffered as a result of the Respondent's failure to make the fringe benefit fund contributions required by its collective-bar- gaining agreement with the Union , as provided in the remedy section of this decision. (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 amounts due under the terms of this Order. (e) Post at its facility in Clare, Michigan, copies of the attached notice marked "Appendix."$ 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. 0 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." 521 (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for the purpose of taking further action in accord with this deci- sion, including, if necessary, the holding of a hear- ing before an administrative law judge on the issue whether the Respondent violated the Act by con- tinuing to deduct dues from its employees' wages when the collective-bargaining agreement was no longer in effect and by retaining this money for itself. 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 fringe ben- efit fund contributions as required by our collec- tive-bargaining agreement with the Union. WE WILL NOT fail and refuse to remit checked off dues to the Union as required by our collective- bargaining agreement 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 all the contributions to fringe benefit funds required by our collective-bargaining agreement with the Union. WE WILL remit to the Union the dues we de- ducted from our unit employees' wages while the collective-bargaining agreement with the Union was in effect. WE WILL make our unit employees whole for any loss of benefits or other expenses suffered as a result of our failure to make the fringe benefit fund contributions required by our collective-bargaining agreement with the Union. W. S. SMITH ELECTRIC, INC.