Mason Tenders Local #388

352 NLRB No. 2 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Mason Tenders Local Union #388, affiliated with Vir- ginia and North Carolina Laborers’ District Council and Sprinkle Masonry, Inc. Case 5–CB– 10112 January 23, 2008 DECISION AND ORDER BY MEMBERS LIEBMAN AND SCHAUMBER The General Counsel seeks summary judgment in this case pursuant to the terms of a settlement agreement. Upon a charge filed by Sprinkle Masonry, Inc., the Charging Party, on January 30, 2007, the General Coun- sel issued the complaint on May 31, 2007, against Mason Tenders Local Union #388, affiliated with Virginia and North Carolina Laborers’ District Council, the Respon- dent, alleging that it has violated Section 8(b)(3) of the Act. Thereafter, the Charging Party and the Respondent entered into an informal settlement agreement that was approved by the Regional Director for Region 5 on Au- gust 22, 2007. The settlement agreement required the Respondent to provide the Charging Party with “any col- lective-bargaining agreements, memoranda of agreement, side letters and other agreements negotiated on or after July 1, 2004, or, if no such information exists, [. . .] with a statement to that effect.” The settlement agreement also contained the following provision: In the event of non-compliance with this settlement agreement, the allegations in a Complaint issued with regard to the violations covered by the Settlement Agreement will be deemed admitted. Upon Motion for Summary Judgment the Board may, without necessity of trial, find all allegations of the Complaint to be true, adopt findings of fact and conclusions of law consistent with the Complaint allegations, and issue an appropri- ate Order. By letter dated August 23, 2007, the Region provided the Respondent with a conformed copy of the settlement agreement, and copies of the notice to employees and members for posting. This letter also advised the Re- spondent to take the steps necessary to comply with the settlement agreement. By letter dated September 13, 2007, the compliance officer for Region 5 advised the Respondent that it had not complied with the terms of the settlement agreement and warned that its failure to do so by September 21, 2007, would result in the filing of a motion for summary judgment as provided by the settle- ment agreement. The Respondent failed to comply. Accordingly, on November 16, 2007, the General Counsel filed a Motion for Summary Judgment with the Board. Thereafter, on November 27, 2007, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted.1 The Re- spondent filed no response. The allegations in the mo- tion are therefore undisputed. On the entire record, the National Labor Relations Board2 makes the following Ruling on Motion for Summary Judgment According to the uncontroverted allegations in the Mo- tion for Summary Judgment, the Respondent has failed to comply with the terms of the settlement agreement by failing to provide the Charging Party with any collective- bargaining agreements, memoranda of agreement, side letters and other agreements negotiated on or after July 1, 2004, or a statement stating that no such information exists, and failing to post the Notice to Employees and Members. Consequently, pursuant to the noncompliance provisions of the settlement agreement set forth above, we find that all of the allegations of the complaint are true.3 Accordingly, we grant the General Counsel’s Mo- tion for Summary Judgment. FINDINGS OF FACT I. JURISDICTION At all material times, the Charging Party, a Virginia corporation with an office and place of business in Chesapeake, Virginia, has been engaged as a masonry contractor in the construction industry doing commercial and industrial construction. During the preceding 12 months prior to the issuance of the complaint, a representative period, the Charging Party, in conducting its business operations described above, purchased and received at its Chesapeake, Vir- ginia facility goods valued in excess of $50,000 directly from points located outside the State of Virginia. 1 The Order and notice issued on November 21, 2007, erroneously stating that the General Counsel had filed a motion for summary judg- ment on the ground that the Respondent failed to file an answer to the complaint, has been vacated. 2 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Members Liebman and Schaumber constitute a quorum of the three- member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 3 See U-Bee, Ltd., 315 NLRB 667 (1994). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 We find that the Charging Party is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times, the Respondent has been a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Robert Fahey held the position of Business Agent, and has been an agent of the Respondent within the meaning of Section 2(13) of the Act. The following employees of the Charging Party consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All employees in the classifications and categories of work covered by the agreement between the Virginia and North Carolina Laborers’ District Council, for and on behalf of Mason Tenders Local Union 388, and Sprinkle Masonry and other Signatory Contractors. On or about June 28, 2004, the Charging Party and the Respondent entered into a collective-bargaining agree- ment effective for the period from July 1, 2004, until June 30, 2006. The agreement was renewed on Septem- ber 13, 2006, to remain in effect until April 30, 2007, and thereafter, to continue in effect from year to year, unless timely notice was given in accordance with the terms of the “Effective Dates” section of the collective-bargaining agreement. Since on or about July 1, 2004, pursuant to the agree- ment described above, the Charging Party has recognized the Respondent as the exclusive collective-bargaining representative of the unit. At all material times since July 1, 2004, based on Sec- tion 9(a) of the Act, the Respondent has been the limited exclusive collective-bargaining representative of the Unit.4 On or about June 23, 2006, by oral request to Business Agent Fahey, the Charging Party requested that the Re- spondent provide the Charging Party with all agreements entered into by the Respondent with other employers. On or about June 26, 2006, by letter sent by mail and facsimile to Fahey, the Charging Party requested that the Respondent provide the Charging Party with any and all collective-bargaining agreements, memoranda of agree- ment, side letters and other agreements entered into by the Respondent with other employers in any industry since July 1, 2004. 4 The Charging Party has recognized the Respondent as the exclu- sive collective-bargaining representative of the unit without regard to whether the majority status of the Respondent has ever been estab- lished. On or about November 7, 2006, by letter sent by mail, facsimile and electronic mail to the Respondent’s coun- sel, the Charging Party requested that the Respondent provide the Charging Party with any and all collective- bargaining agreements, memoranda of agreement, side letters and other agreements entered into by the Respon- dent with other employers in any industry since July 1, 2004. The information requested by the Charging Party is necessary for, and relevant to, the Charging Party’s monitoring of article XXIII, the “Favored Nations Clause” of the parties’ collective-bargaining agreement described above. Since on or about June 23, 2006, the Respondent has failed and refused to furnish the Charging Party with the requested information. CONCLUSION OF LAW By failing and refusing to furnish the Charging Party with the requested information, the Union, the represen- tative of the Charging Party’s employees, has failed and refused to bargain collectively and in good faith with an employer, and has thereby engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(b)(3) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain 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. Specifically, having found that the Respondent violated Section 8(b)(3) of the Act by failing and refusing to provide the Charging Party with information that is relevant and necessary for col- lective bargaining, we shall order the Respondent to pro- vide the Charging Party with any collective-bargaining agreements, memoranda of agreement, side letters and other agreements negotiated on or after July 1, 2004, or, if no such information exists, with a statement to that effect. ORDER The National Labor Relations Board orders that the Respondent, Mason Tenders Local Union #388, affiliated with Virginia and North Carolina Laborers’ District Council, Chesapeake, Virginia, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with the Charging Party, as employer of the employees in the following unit: All employees in the classifications and categories of work covered by the agreement between the Virginia MASON TENDERS LOCAL #388 3 and North Carolina Laborers’ District Council, for and on behalf of Mason Tenders Local Union 388, and Sprinkle Masonry and other Signatory Contractors. (b) Failing and refusing to furnish the Charging Party with information that is necessary for, and relevant to, the Charging Party’s monitoring of article XXIII, the “Favored Nations Clause” of the parties’ collective- bargaining agreement. (c) In any like or related refusing to bargain collec- tively and in good faith with Sprinkle Masonry, Inc., the Employer. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Provide the Charging Party with any collective- bargaining agreements, memoranda of agreement, side letters and other agreements negotiated on or after July 1, 2004, or, if no such information exists, with a statement to that effect. (b) Within 14 days after service by the Region, post at its business office and meeting halls in Norfolk, Virginia, copies of the attached notice marked “Appendix.”5 Cop- ies of the notice, on forms provided by the Regional Di- rector for Region 5, after being signed by the Respon- dent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Within 14 days after service by the Region, deliver to the Regional Director for Region 5 signed copies of the notice in sufficient numbers for posting by the Charg- ing Party at its Chesapeake, Virginia office, if it is will- ing, in all places where notices to employees are custom- arily posted. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 23, 2008 5 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Wilma B. Liebman, Member Peter C. Schaumber, Member (SEAL) 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to bargain collectively and in good faith with Sprinkle Masonry, Inc., as employer of the employees in the following unit: All employees in the classifications and categories of work covered by the agreement between the Virginia and North Carolina Laborers’ District Council, for and on behalf of Mason Tenders Local Union 388, and Sprinkle Masonry and other Signatory Contractors. WE WILL NOT fail and refuse to provide Sprinkle Ma- sonry, Inc. with information that is necessary for, and relevant to, Sprinkle Masonry, Inc.’s monitoring of arti- cle XXIII, the “Favored Nations Clause” of our collec- tive-bargaining agreement. WE WILL NOT in any like or related manner refuse to bargain collectively with Sprinkle Masonry, Inc. the Em- ployer. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 WE WILL provide Sprinkle Masonry, Inc. with any col- lective-bargaining agreements, memoranda of agreement, side letters and other agreements negotiated on or after July 1, 2004, or, if no such information exists, with a statement to that effect. MASON TENDERS LOCAL UNION #388, AFFILIATED WITH VIRGINIA AND NORTH CAROLINA LABORERS’ DISTRICT COUNCIL