Ace Masonry, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1980

252 N.L.R.B. 287 (N.L.R.B. 1980)

ACE MASONRY, INC.
Ace Masonry, Inc. and International Union of
Bricklayers and Allied Craftsmen, Local No. 1
of Tucson, Arizona, and Southern Arizona Ma-
sonry Association and International Union of
Bricklayers and Allied Craftsmen Local No. 1,
of Tucson, Arizona, Health and Welfare Trust
Fund and Tucson Bricklayers Pension Trust
Fund. Cases 28-CA-5763-1, -2
September 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon charges filed on March 13, 1980, by Inter-
national Union of Bricklayers and Allied Crafts-
men, Local No. I of Tucson, Arizona, herein
called the Union, and by Southern Arizona Mason-
ry Association and International Union of Bricklay-
ers and Allied Craftsmen, Local No. 1, Tucson,
Arizona, Health and Welfare Trust Fund and
Tucson Bricklayers Pension Trust Fund, herein
called the Funds, and duly served on Ace Mason-
ry, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 28, issued a con-
solidated complaint and notice of hearing on April
25, 1980, against Respondent, alleging that Re-
spondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charges and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that Respondent has
failed and refused to bargain collectively with the
Union by unilaterally discontinuing certain reports,
payments, and remittances it was required to make
under the effective collective-bargaining agreement
with the Union. Respondent did not file an answer
to the complaint.
On June 23, 1980, the General Counsel filed di-
rectly with the Board motions to transfer and con-
tinue matters before the Board and for summary
judgment based on Respondent's failure to file an
answer as required by Section 102.20 of the Na-
tional Labor Relations Board Rules and Regula-
tions, Series 8, as amended. Subsequently, on July
7, 1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's motions should
not be granted. Respondent did not file a response
to the Notice To Show Cause.
252 NLRB No. 22
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions, Series 8, as amended, provides:
The respondent shall, within 10 days from the
service of the complaint, file an answer there-
to. The respondent shall specifically admit,
deny, or explain each of the facts alleged in
the complaint, unless the respondent is without
knowledge, in which case the respondent shall
so state, such statement operating as a denial.
All allegations in the complaint, if no answer
is filed, or any allegation in the complaint not
specifically denied or explained in an answer
filed, unless the respondent shall state in the
answer that he is without knowledge, shall be
deemed to be admitted to be true and shall be
so found by the Board, unless good cause to
the contrary is shown.
The complaint and notice of hearing served on
Respondent specifically stated that, unless an
answer to the complaint was filed within 10 days
from the service thereof, "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,
Respondent was notified by letter dated May 12,
1980, that an answer to the complaint had not been
received, and that summary judgment would be
sought unless an answer was received forthwith.
As noted above, Respondent has not filed an
answer to the complaint, and did not respond to
the Notice To Show Cause. No good cause to the
contrary having been shown, in accordance with
the Rules set forth above, the allegations of the
complaint are deemed to be admitted and are found
to be true. Accordingly, we grant the General
Counsel's Motion for Summary Judgment.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
1. At all times material herein, Respondent, an
Arizona corporation with its office and place of
business at 3820 East Bellevue, Tucson, Arizona,
has been engaged in business as a masonry contrac-
tor in the building and construction industry.
During the past 12 months, which period is repre-
See Eagle Truck and Trailer Rental Division of E. T & T Leasing.
Inc., 211 NLRB 804 (1974).
287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative of its annual operations generally, Re-
spondent, in the course and conduct of its business
operations, performed services valued in excess of
$50,000 for other enterprises located within the
State of Arizona, including, but not limited to, Al
Macias, a sole proprietor (herein called Macias),
Olmeca Construction Co., Inc. (herein called
Olmeca), Willmeng Homes, Inc. (herein called
Willmeng), and David Thomas Tyson, a sole pro-
prietor, d/b/a the Indigo Company (herein called
Tyson).
2. At all times material herein, Macias, with an
office and place of business at 4244 Avenida Don
Porfirio, Tucson, Arizona, and Olmeca, an Arizona
corporation with an office and place of business at
4850 East Broadway, Tucson, Arizona, have been
engaged in the construction and retail sale of
homes. At all times material herein, Macias and
Olmeca have been affiliated business enterprises
with common officers, ownership, management,
and supervision; have formulated and administered
a common labor policy affecting employees of the
operations; and have interchanged personnel with
each other. By virture of their operations described
above Marcias and Olmeca constitute a single inte-
grated business enterprise and a single employer
within the meaning of the Act.
During the past 12 months, which period is rep-
resentative of the operations generally, Macias and
Olmeca, collectively, derived gross revenue in
excess of $500,000. During the same period of time,
Macias and Olmeca, collectively, purchased and re-
ceived at their Arizona operations products, goods,
and materials valued in excess of $2,000 from other
enterprises, including Del Mar Builders Supply
Co., located within the State of Arizona, each of
which other enterprises had received the products,
goods, and materials directly from points outside
the State of Arizona.
Macias and Olmeca, collectively, are now, and
have been at all times material herein, a single inte-
grated enterprise and an employer engaged in com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act.
3. At all times material herein, Willmeng, an Ari-
zona corporation with an office and place of busi-
ness at 1801 West Rudasill, Tucson, Arizona, has
been engaged in the construction and retail sale of
homes. During the past 12 months, which period is
representative of its annual operations generally,
Willmeng, in the course and conduct of its business
operations, derived gross revenue in excess of
$500,000. During the same period of time, Will-
meng purchased and received at its Arizona oper-
ations products, goods, and materials valued in
excess of $2,000 from other enterprises, including
Del Mar Builders Supply Co., located within the
State of Arizona, each of which other enterprises
had received the products, goods, and materials di-
rectly from points outside the State of Arizona.
Willmeng is now, and has been at all times mate-
rial herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the Act.
4. At all times material herein, Tyson, an individ-
ual proprietorship with an office and place of busi-
ness at 2301 East Broadway, Tucson, Arizona, has
been engaged in the construction and retail sale of
homes. During the past 12 months, which period is
representative of its annual operations generally,
Tyson, in the course and conduct of its business
operations, derived gross revenue in excess of
$500,000. During the same period of time, Tyson
purchased and received at its Arizona operations
products, goods, and materials valued in excess of
$5,000 directly from points outside the State of Ar-
izona.
Tyson is now, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act,
and that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Bricklayers and Allied
Craftsmen, Local No. 1 of Tucson, Arizona, is a
labor organization within the meaning of Section
2(5) of the Act.
1II. THE UNFAIR LABOR PRACTICES
Since 1973 Respondent and the Union have en-
tered into a series of collective-bargaining agree-
ments, the most recent of which is effective from
July 1, 1979, through June 30, 1982, and, more par-
ticularly, described as the agreement between the
International Union of Bricklayers and Allied
Craftsmen, Local No. I of Tucson, Arizona, and
the Southern Arizona Masonry Association, to
which Respondent was signatory, herein called the
Agreement.
The Agreement provides, among other things,
for the recognition of the Union as the exclusive
collective-bargaining representative of Respond-
ent's masonry employees described in the following
manner:
That the Employers hereby recognize the
Union signatory hereto as the sole exclusive
288
ACE MASONRY, INC.
collective bargaining representative for all
Trade Employees of the Employers signatory
hereto over whom the Union has jurisdiction
as such jurisdiction is defined by the Building
and Construction Trades Department of the
AFL-CIO.
The unit of employees thus described in the
Agreement constitutes a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act. Further, at all times
material herein, the Union has been the representa-
tive of Respondent's employees in that unit, and by
virtue of Section 9(a) of the Act, has been, and is
now, the exclusive representative of all the unit
employees with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment.
The Agreement establishes the wages, hours, and
other conditions of employment for Respondent's
unit employees and provides that Respondent shall
make certain reports, payments, and remittances.
Pursuant to article X of the Agreement, Respond-
ent is required to make monthly payments based on
the hours worked by its unit employees to the var-
ious trust funds established thereunder, including
health and welfare, pension, apprenticeship train-
ing, and industry promotion, as well as payments
for fees to administer the industry promotion pro-
gram. Pursuant to article X of the Agreement, Re-
spondent is also required to file certain monthly re-
ports with the applicable trust funds, indicating the
number of hours covering the amount of money
due to such trust funds. Pursuant to article XI of
the Agreement, Respondent is required to make
monthly remittances to the depository designated
by the Union for the receipt of union dues deduct-
ed by Respondent from the wages of its unit em-
ployees pursuant to checkoff authorizations execut-
ed by the employees.
Commencing on or about November 15, 1979,
Respondent unilaterally discontinued the reports,
payments, and remittances required by articles X
and XI of the Agreement. Specifically, at all times
since on or about November 15, 1979, and continu-
ing to date, Respondent, without notice to the
Union or without affording the Union an opportu-
nity to bargain with respect thereto, unilaterally
discontinued payments to the fringe benefit trust
funds and otherwise failed to pay the administra-
tive fees described above; unilaterally discontinued
filing the monthly reports described above; and
unilaterally discontinued remitting the sums de-
ducted from its employees for union dues to the
depository designated by the Union.
We find that by the conduct described above Re-
spondent has since November 15, 1979, failed and
refused to bargain collectively with the Union as
the representative of its employees in the appropri-
ate unit, and thereby has engaged in and is engag-
ing in, unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and
take certain affirmative action designed to effectu-
ate the policies of the Act.
We have found that Respondent violated Section
8(a)(5) of the' Act by unilaterally discontinuing
making reports, payments, and remittances as re-
quired by articles X and XI of the Agreement be-
tween the Union and Respondent. In order to
remedy these unfair labor practices, we shall order
Respondent to make whole its employees by
making the payments which should have been
made pursuant to article X of the Agreement, ret-
roactive to November 15, 1979, and remitting to
the designated repository the sums deducted from
employees for union dues, with interest on the dues
to be computed in the manner prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977).2 We shall
also order Respondent to make the monthly reports
required by article X of the Agreement.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
I See, generally, Isis Plumbing d Heating Ca, 138 NLRB 716 (1962).
Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments. We leave to the compliance stage the question
whether Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy. These additional
amounts may be determined, depending on the circumstances of each
case, by reference to provisions in the documents governing the funds at
issue and, where there are no governing provisions, to evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds withheld,
additional administrative costs, etc., but not collateral losses.
Merryweather Optical Company, 240 NLRB 1213 (1979).
289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Ace Masonry, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union of Bricklayers and Allied
Craftsmen, Local No. 1 of Tucson, Arizona, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All trade employees of the employers signato-
ry to the agreement between International Union
of Bricklayers and Allied Craftsmen, Local No. I
of Tucson, Arizona, and Southern Arizona Mason-
ry Association, over whom the Union has jurisdic-
tion as such jurisdiction is defined by the Building
and Construction Trades Department of the AFL-
CIO, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. At all times material herein, the Union has
been the exclusive representative of all the employ-
ees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning
of Section 9(a) of the Act.
5. Since on or about November 15, 1979, by uni-
laterally discontinuing making payments and re-
ports to trust funds and remitting dues deducted
from employees as required by articles X and XI of
the agreement between International Union of
Bricklayers and Allied Craftsmen, Local No. 1 of
Tucson, Arizona, and Southern Arizona Masonry
Association, effective from July 1, 1979, through
June 30, 1982, Respondent has refused to bargain
collectively with the above-named labor organiza-
tion as the exclusive bargaining representative of
all the employees of Respondent in the appropriate
bargaining unit described above, and thereby has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Ace Masonry, Inc., Tucson, Arizona, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Interna-
tional Union of Bricklayers and Allied Craftsmen,
Local No. 1 of Tucson, Arizona, by unilaterally
discontinuing making payments and reports to trust
funds and remitting dues deducted from employees
as required by articles X and XI of the agreement
between International Union of Bricklayers and
Allied Craftsmen, Local No. 1 of Tucson, Arizona,
and Southern Arizona Masonry Association, effec-
tive from July 1, 1979, through June 30, 1982.
(b) ' In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Honor articles X and XI of the agreement be-
tween International Union of Bricklayers and
Allied Craftsmen, Local No. I of Tucson, Arizona,
and Southern Masonry Association, effective from
July 1, 1979, through June 30, 1982.
(b) Make whole its employees by making reports
and payments to trust funds in the manner set forth
in the section of this Decision entitled "The
Remedy."
(c) Remit the sums deducted from its employees
for union dues to the depository designated by the
Union in the manner set forth in the section of this
Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary or useful in check-
ing compliance with this Order.
(e) Post at its facility in Tucson, Arizona, copies
of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the
Regional Director for Region 28, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 28,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
3 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of appeals Enforcing an
Order of the National Labor Relations Board."
290
ACE MASONRY, INC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with International Union of Bricklayers and
Allied Craftsmen, Local No. I of Tucson, Ari-
zona, by unilaterally discontinuing making re-
ports and payments to trust funds and remit-
ting dues deducted from employees as required
by articles X and XI of the agreement between
International Union of Bricklayers and Allied
Craftsmen, Local No. 1 of Tucson, Arizona,
and the Southern Arizona Masonry Associ-
ation, effective from July 1, 1979, through
June 30, 1982.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended.
WE WILL honor articles X and XI of the
agreement with the Union.
WE WILL make our employees whole by
paying to the trust funds the payments which
should have been made pursuant to the terms
of the agreement with the Union; WE WILL
make the required reports to the funds; and
WE WILL remit the sums deducted from em-
ployees for union dues, plus interest, to the de-
pository designated by the Union.
ACE MASONRY, INC.
291