WC Welding

350 NLRB No. 69 WC Welding and International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, Local 7, AFL–CIO. Case 1–CA–43685 August 15, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW AND WALSH The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union, International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, Local 7, AFL– CIO, the General Counsel issued the complaint and no- tice of hearing on April 30, 2007, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Act. The Respondent failed to file an answer. On June 22, 2007, the General Counsel filed a Motion for Default Judgment with the Board. On June 27, 2007, 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 Respondent filed no re- sponse. The allegations in the motion are therefore un- disputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board's Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days of the service of the complaint, unless good cause is shown. In addition, the complaint affirmatively states that unless an answer was received by May 14, 2007, the Board may find, pursuant to a Motion for Default Judg- ment, that the allegations in the complaint are true. Fur- ther, the undisputed allegations in the General Counsel’s motion disclose that the Region, by letter dated May 16, 2007, notified the Respondent that unless an answer was received by the close of business on May 23, 2007, the Board may find, pursuant to a Motion for Default Judg- ment, that the allegations in the complaint are true.1 1 Copies of the complaint and the May 16, 2007 letter were served on the Respondent by certified mail. The certified envelope containing the complaint and notice of hearing was returned as “unclaimed” and “unable to forward.” The certified envelope containing the copy of the May 16, 2007 letter was also returned as “unclaimed.” On May 25, 2007, another copy of the complaint and notice of hearing was sent by regular mail to the Respondent at its last known address. The docu- ments sent by regular mail have not been returned. It is well estab- lished that the failure or refusal to accept certified mail or to provide for proper service cannot serve to defeat the purposes of the Act. See, e.g., I.C.E. Electric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel's Motion for Default Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a sole proprie- torship with an office and place of business in Athol, Massachusetts, has been engaged in the construction in- dustry as a welding contractor. During the 12-month period ending March 1, 2007, a representative period, the Respondent, in conducting its business operations, provided services valued in excess of $50,000 for enterprises within the Commonwealth of Massachusetts which are directly engaged in interstate commerce, including Hackensack Steel Corporation. During the 12-month period ending March 1, 2007, the Respondent, in conducting its business operations, pur- chased and received goods and materials valued in ex- cess of $50,000 directly from points located outside the Commonwealth of Massachusetts. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(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 At all material times, William Cantrell has held the po- sition of the Respondent’s owner and President, and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respon- dent within the meaning of Section 2(13) of the Act. At all material times, Building Trades Employers’ As- sociation of Boston and Eastern Massachusetts, Inc. and Labor Relations Division of the Associated General Con- tractors of Massachusetts, Inc. (the Associations) have been organizations composed of various employers en- gaged in the construction industry, one purpose of which is to represent their employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including the Union. The Associations granted recognition to the Union as the exclusive collective-bargaining representative of all employees who perform work under the craft jurisdiction of the Union (the unit), who are employed by members of the Associations and of other employers who have authorized the Associations to bargain on their behalf without regard to whether the majority status of the Un- therein. In any event, the failure of the Postal Service to return docu- ments sent by regular mail indicates actual receipt. Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ion has ever been established under the provisions of Section 9(a) of the Act. Such recognition has been embodied in successive col- lective-bargaining agreements, the most recent of which is effective for the period from September 16, 2004 to September 15, 2010 (the 2004 Association Agreement). About July 26, 2000, the Respondent entered into an Acceptance of Agreements and Declarations of Trusts (the 2000 Acceptance), whereby it agreed to be bound by all provisions of the collective-bargaining agreements between the Associations and the Union in effect, and by such future collective-bargaining agreements between the Associations and the Union unless timely notice was given. The Respondent, an employer engaged in the building and construction industry, by the 2000 Acceptance, granted recognition to the Union as the exclusive collec- tive-bargaining representative of its employees employed within the unit without regard to whether the majority status of the Union has ever been established under the provisions of Section 9(a) of the Act. At all times since July 26, 2000, based on Section 9(a) of the Act, the Union has been, and is, the limited exclu- sive collective-bargaining representative of the Unit.2 Since about October 2006, the Respondent has with- drawn recognition from the Union as the limited exclu- sive collective-bargaining representative of the unit and has failed to apply the provisions of the 2004 Association Agreement to the operations and unit employees of the Respondent. CONCLUSION OF LAW By withdrawing recognition from the Union on or about October 2006, and by failing to apply the provi- sions of the 2004 Association Agreement to its opera- tions and unit employees, the Respondent has failed and refused to bargain collectively and in good faith with the limited exclusive collective-bargaining representative of its employees within the meaning of Section 8(d) of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. The Respondent’s unfair la- bor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 2 The complaint alleges that the Respondent is engaged in the con- struction industry as a welding contractor and that it granted recogni- tion to the Union without regard to whether the majority status of the Union had been established. Accordingly, we find that the relationship was entered into pursuant to Sec. 8(f) of the Act and that the Union is therefore the limited 9(a) representative of the unit employees for the period covered by the contract. See, e.g., A.S.B. Cloture, Ltd., 313 NLRB 1012 (1994). 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(a)(5) and (1) by failing, since about October 2006, to apply the provisions of the 2004 Association Agreement to its op- erations and unit employees, we shall order the Respon- dent to apply to its operations and its unit employees all the terms and conditions of the 2004 Association Agree- ment. We shall also order the Respondent to make the unit employees whole for any loss of earnings and other benefits they may have suffered as a result of the Re- spondent’s refusal to apply the terms and conditions of the 2004 Association Agreement since about October 2006. Backpay shall be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). In addition, we shall order the Respondent to make all contractually required contributions, if any, to fringe benefit funds that it failed to make, including any addi- tional amounts due the funds on behalf of the unit em- ployees in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn.7 (1979). Further, the Re- spondent shall reimburse unit employees for any ex- penses ensuing from its failure to make any required con- tributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be computed in the manner set forth in Ogle Protection Service, supra, with interest as prescribed in New Horizons for the Retarded, supra.3 Furthermore, having found that the Respondent unlaw- fully withdrew recognition from the Union on about Oc- tober 2006, we shall order the Respondent to recognize the Union as the limited exclusive collective-bargaining representative of the unit employees. ORDER The National Labor Relations Board orders that the Respondent, WC Welding, Athol, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition from International Asso- ciation of Bridge, Structural, Ornamental & Reinforcing 3 To the extent that an employee has made personal contributions to a fund that are accepted by the fund in lieu of the Respondent’s delin- quent contributions during the period of the delinquency, the Respon- dent will reimburse the employee, but the amount of such reimburse- ment will constitute a setoff to the amount that the Respondent other- wise owes the fund. WC WELDING 3 Iron Workers, Local 7, AFL–CIO, as the limited exclu- sive collective-bargaining representative of the unit em- ployees. The unit consists of all employees who perform work under the craft jurisdiction of the Union who are employed by members of the Building Trades Employ- ers’ Association of Boston and Eastern Massachusetts, Inc. and Labor Relations Division of the Associated General Contractors of Massachusetts, Inc. (the Associa- tions) and of other employers who have authorized the Associations to bargain on their behalf without regard to whether the majority status of the Union has ever been established under the provisions of Section 9(a) of the Act. (b) Failing to apply the provisions of the 2004 Asso- ciation Agreement in effect from September 16, 2004 to September 15, 2010, to its operations and its unit em- ployees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize the Union as the limited exclusive col- lective-bargaining representative of its unit employees. (b) Apply to its operations and its unit employees the terms and conditions of the 2004 Association Agreement and any automatic renewal or extension thereof. (c) Make whole the unit employees for any loss of earnings and other benefits they may have suffered as a result of the Respondent’s failure since about October 2006 to apply to its operations and its unit employees the term and conditions of the 2004 Association Agreement, and reimburse them for any expenses ensuing from its failure to make contractually-required payments to fringe benefit funds, if any, with interest, as set forth in the remedy section of this decision. (d) Make all contractually-required contributions to fringe benefit funds that it has failed to make, since Oc- tober 2006, as set forth in the remedy portion of this de- cision. (e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security records, timecards, personnel records and reports, and all other records including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facility in Athol, Massachusetts, copies of the attached notice marked “Appendix”.4 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 2006. (g) 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. 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 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 with us 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 withdraw recognition from International Association of Bridge, Structural, Ornamental & Rein- forcing Iron Workers, Local 7, AFL–CIO, as the limited exclusive collective-bargaining representative of the unit employees. The unit consists of all employees who per- form work under the craft jurisdiction of the Union who are employed by members of the Building Trades Em- ployers’ Association of Boston and Eastern Massachu- setts, Inc. and Labor Relations Division of the Associated 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 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 General Contractors of Massachusetts, Inc. (the Associa- tions) and of other employers who have authorized the Associations to bargain on their behalf without regard to whether the majority status of the Union has ever been established under the provisions of Section 9(a) of the Act. WE WILL NOT fail to apply the provisions of the 2004 Association Agreement in effect from September 16, 2004 to September 15, 2010, to our operations and our unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize the Union as the limited exclusive collective-bargaining representative of our unit employ- ees. WE WILL apply to our operations and our unit employ- ees the terms and conditions of the 2004 Association Agreement and any automatic renewal or extension thereof. WE WILL make whole our unit employees for any loss of earnings and other benefits they may have suffered as a result of our failure since about October 2006 to apply to our operations and our unit employees the terms and conditions of the 2004 Association Agreement and reim- burse them for any expenses ensuing from our failure to make contractually-required payments to fringe benefit funds, if any, with interest. WE WILL make any contractually required contribu- tions to fringe benefit funds that we failed to make since about October 2006. WC WELDING