R & R Brickwork, Inc.

542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD l R & R Brickwork, Inc. and Laborers Local 660, af- filiated with the Eastern Missouri Laborers Dis- trict Council. Case 14-CA-20665 August 23, 1990 DECISION AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT Upon a charge filed by the Union March 16, 1990, and amended April 2, 1990, the General Counsel of the National Labor Relations Board issued a complaint April 9, 1990, against R & R Brickwork, Inc , the Respondent, alleging that it has violated Section 8(a)(1) and (5) of the National Labor Relations Act Although properly served copies of the charge and complaint, the Respond- ent has failed to file an answer On May 17, 1990, the General Counsel filed a Motion for Summary Judgment On May 21, 1990, 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 m 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 to be true and shall be so found by the Board" Further, the undisputed allegations in the Motion for Summary Judgment disclose that counsel for the General Counsel, by letter dated May 8, 1990, notified the Respondent that unless an answer was received by close of business May 11, 1990, a Motion for Summary Judgment would be filed In the absence of good cause being shown for the failure to file a timely answer, we grant the Genera' Counsel's Motion for Summary Judgment On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a corporation with an office and place of business in St Charles, Missouri, has been engaged as a bricklaying and masonry con- tractor in the building and construction industry During the 12 months precedmg the issuance of the complaint, the Respondent performed services valued in excess of $50,000 to customers within the State of Missouri, which customers, an turn, meet other than a solely indirect standard for the asser- tion of Board jurisdiction 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 Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act All mason tenders and mason tender foremen employed by the Employer at its work sites lo- cated in the City and County of St Louis, St Charles, Warren, Lincoln, and Montgomery counties in the State of Missouri, EXCLUD- ING office clerical and professional employ- ees, guards, and supervisors as defined in the Act, and all other employees At all material times, the Mason Contractors' As- sociation of St Louis, Missouri (Association), has been an organization composed of approximately 60 employers which exists for the purpose, inter aim, of representing its employer-members in nego- tiating and administering collective-bargaining agreements with the Union The Respondent, although not a member of the Association, executed a 3-year collective-bargain- ing agreement negotiated by the Union and the As- sociation, effective by its terms from June 1, 1986, through May 31, 1989, which provided, in perti- nent part, for the following renewal clause "For Use By Contractors Not Members of Mason Con- tractors' Association of St Louis" The undersigned hereby agrees with the Union to accept and be bound by all the foregoing Agreement, and also agrees to be bound by all renewals, changes or extensions thereto made by the original parties, unless notice of termi- nation is given to the Union by the under- signed not less than sixty (60) days or more than ninety (90) days prior to any termination date The Respondent never gave the Union notice to terminate the collective-bargaining agreement About June 1, 1989, pursuant to Section 8(0 of the Act, the Union and the Association negotiated 299 NLRB No 80 R R BRICKWORK 543 a 3-year collective-bargaining agreement effective by its terms from June 1, 1989, through May 31, 1992, which terms and conditions the Respondent adopted At all material times, the Union, by virtue of Section 9(a) of the Act, has been, and is, the limit- ed exclusive representative of the unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment 1 Commencing in January 1990, the Respondent has failed to comply with the terms of its collec- tive-bargaining agreement with the Union by the following acts and conduct A Failing to pay contractually required wage rates B Failing to make full and accurate, fringe bene- fit reports to the Union regarding the employees employed by the Respondent and their hours worked C Failing to make contributions to the Union for the fringe benefits set forth in the collective- bargaining agreement, and more specifically, the Construction Industry Laborers' Welfare Fund of Missouri and the Construction Industry Laborers' Pension Trust Fund of Missouri We find that, by the acts and conduct described above, the Respondent has failed and refused, and is failing and refusing, to bargain collectively and in good faith with the representative of its employ- ees, and the Respondent thereby has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act CONCLUSION OF LAW By failing to pay contractually required wage rates, failing to make contractually required fringe benefit contributions, and failing to submit full and accurate fringe benefit reports to the Union regard- ing its employees and the hours they worked, the Respondent is failing and refusing to bargain col- lectively and in good faith with the Union and 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 'Par 5(E) of the complaint alleges that the Union, by virtue of Sec 9(a) of the Act, is the exclusive representative of the unit employees It appears, however, based on the Respondent's adoption of the 8(f) con- tract between the Association and the Union, that a relationship under Sec 8(f) of the Act was established between the Respondent and the Union Under the principles announced in John Deklewa d Sons, 282 NLRB 1375 (1986), enfd 843 F 2d 770 (3d Cir 1988), an 8(f) signatory union does not acquire full 9(a) status based solely on the employer's adoption of an 8(f) agreement Accordingly, we find that the Union is the limited exclusive bargaining representative of the urut employees Id at 1386-1387 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 to comply with the collective-bargaining agreement by paying the contractually required wage rates, by making the contractually required fnnge benefit contnbutions, and by submitting the contractually required fringe benefit reports to the Union that were unlawfully withheld since January 1990 In making the em- ployees whole for their lost wages the appropriate method of determining backpay is specified in Ogle Protection Service, 183 NLRB 682, 683 (1970) In addition, the Respondent shall make its employees whole for any losses resulting from its failure to make contractual fringe benefit contributions in the manner. prescribed in Kraft Plumbing & Heating, 252 NLRB 891 fn 2 (1980), enfd mem 661 F 2d 940 (9th Cir 1981) This shall include reimbursing employees for any contributions they themselves may have made, with interest, for the maintenance of any fund after the Respondent made its unilater- al changes 2 Interest on any money due and owing employees shall be computed in the manner pre- scribed in New Horizons for the Retarded, 283 NLRB 1171 (1987) The method of determining the additional amounts, if any, owed to the fringe bene- fit funds is specified in Merryweather Optical Co, 240 NLRB 1213 (1979) ORDER The National Labor Relations Board orders that the Respondent, R & R Brickwork, Inc , St Charles, Missouri, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Failing to comply with the terms of its col- lective-bargaining agreement with Laborers Local 660 by failing to pay contractually required wage rates, failing to make contractually required fringe benefit contributions, and failing to submit full and accurate fringe benefit reports to the Union regard- ing the employees employed by the Respondent and their hours worked (b) 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 2 See Concord Metal, 295 NLRB 912 (1989) 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) On request, bargain with the Union as the limited exclusive representative of the employees in the appropriate unit and comply with the collec- tive-bargaining agreement effective by its terms from June 1, 1989, through May 31, 1992, by paying the contractually required wage rates, making the contractually required fringe benefit contnbutions, and submitting full and accurate fringe benefit reports to the Union regarding the employees employed by the Respondent and their hours worked The appropriate unit is All mason tenders and mason tender foremen employed by the Employer at its work sites lo- cated in the City and County of St Louis, St Charles, Warren, Lincoln, and Montgomery counties in the State of Missouri, EXCLUD- ING office clerical and professional employ- ees, guards, and supervisors as defined in the Act, and all other employees (b) Make the umt employees whole for any loss of wages and benefits they may have suffered be- cause of the Respondent's failure to comply with the terms of its collective-bargaining agreement with the Union, as set forth in the remedy section of this Decision and Order (c) 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 (d) Post at its facility in St Charles, Missouri, copies of the attached notice marked "Appendix "3 Copies of the notice, on forms provided by the Re- gional Director for Region 14, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable 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 3 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 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 fall to comply with our collec- tive-bargaining agreement with Laborers Local 660, affiliated with the Eastern Missouri Laborers District Council, effective from June 1, 1989, through May 31, 1992, by failing to pay contrac- tually required wage rates, failing to make contrac- tually required benefit fund contributions, and fail- ing to submit full and accurate fringe benefit re- ports to the Union regarding the employees em- ployed by the Respondent and their hours worked 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, on request, bargain with the Union as the limited exclusive representative of the employ- ees in the appropriate unit and comply with the collective-bargaimng agreement effective by its terms from June 1, 1989, through May 31, 1992, by paying contractually required wage rates, making contractually required fringe benefit contributions, and submitting full and accurate fringe benefit re- ports to the Union regarding the employees em- ployed by the Respondent and their hours worked The appropriate unit is All mason tenders and mason tender foremen employed by the Employer at its work sites lo- cated in the City and County of St Louis, St Charles, Warren, Lincoln, and Montgomery counties in the State of Missouri, EXCLUD- ING office clerical and professional employ- ees, guards, and supervisors as defined in the Act, and all other employees WE WILL make our unit employees whole, with interest, for any losses resulting from our failure to comply with our collective-bargaining agreement and WE WILL reimburse you for any expenses ensu- ing from our unlawful failure to make fringe bene- fit contributions pursuant to our collective-bargain- ing agreement with the Union R & R BRICKWORK, INC