American Industries

National Labor Relations Board - Board Decisions

Nov 22, 1993

313 N.L.R.B. 61 (N.L.R.B. 1993)

61
313 NLRB No. 24
AMERICAN INDUSTRIES
1 Caribe Cleaning Services, 304 NLRB 932 (1991), is distinguish-
able. There, unlike here, the answer to the original complaint denied
its substantive allegations.
American Industries of Indiana, Inc. and Southwest
Ohio District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO. Cases 9–CA–29630 and 9–
CA–29839
November 22, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Upon charges filed by the Union in Case 9–CA–
29630 on June 1, 1992, and in Case 9–CA–29839 on
August 6, the General Counsel of the National Labor
Relations Board issued complaints against American
Industries of Indiana, Inc., the Respondent, alleging
that it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act. The first complaint issued
July 14. On July 31, the Respondent filed an answer
admitting in part and denying in part the allegations of
the initial complaint.
On September 22, 1992, the General Counsel issued
a consolidated complaint. On June 23, 1993, the Gen-
eral Counsel notified the Respondent, in writing, of its
obligation to file an answer to the consolidated com-
plaint and advised the Respondent that unless its an-
swer was received by close of business on June 30,
1993, the General Counsel would file a Motion for
Summary Judgment with the Board. The Respondent
failed to file an answer to the consolidated complaint
with the Board.
On July 23, 1993, the General Counsel filed a Mo-
tion for Summary Judgment with exhibits and a sup-
porting memorandum attached. On August 4, 1993, 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.
Ruling on Motion for Summary Judgment
The Respondent’s answer to the initial complaint ad-
mits all substantive facts necessary to establish the un-
fair labor practices alleged. The consolidated complaint
served on the Respondent specifically stated that un-
less an answer was filed within 14 days of service,
‘‘All of the allegations of the complaint shall be
deemed to be admitted to be true and shall be so found
by the Board.’’ Sections 102.20 and 102.21 of the
Board’s Rules and Regulations provide that the allega-
tions 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 Respond-
ent did not file an answer to the consolidated com-
plaint within the required time, nor did it request an
extension of time in which to file an answer. In addi-
tion, the Respondent was advised in writing that unless
an answer to the consolidated complaint was filed, a
Motion for Summary Judgment would ensue. The Re-
spondent has continued to fail to file an answer to the
consolidated complaint or a response to the Board’s
Notice to Show Cause why summary judgment should
not be granted.
As the Respondent’s answer to the initial complaint
admits all substantive facts necessary to establish the
unfair labor practices alleged and does not raise any
litigable issues, and as the Respondent has failed to
file an answer to the consolidated complaint as re-
quired by the Board’s Rules and has failed to show
good cause why it has not done so, we grant the Gen-
eral Counsel’s Motion for Summary Judgment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Hamilton,
Ohio, has been engaged as a contractor in the con-
struction industry performing drywall, metal stud, and
acoustical ceiling construction. During the 12-month
period preceding issuance of the consolidated com-
plaint, the Respondent, in conducting its business oper-
ations, purchased and received goods valued in excess
of $50,000 directly from points outside the State of
Ohio. We find that the Respondent is an employer en-
gaged 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
The following employees of the Respondent con-
stitute an appropriate unit for purposes of collective
bargaining under Section 9(b) of the Act:
All carpenters in the employ of Respondent, ex-
cluding all other employees and all guards and su-
pervisors within the meaning of the Act.
In 1989, the Respondent granted recognition to the
Union pursuant to Section 8(f) of the Act and entered
into a collective-bargaining agreement with the Union.
This agreement was effective from June 1, 1989, to
June 1, 1992. From February 1 through June 1, 1992,
the Respondent failed to continue in effect all the
terms and conditions of employment of this agreement
by failing to remit to the Union, on behalf of the unit
employees, health and welfare and pension contribu-
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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
National 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.’’
tions. The Respondent engaged in this conduct without
the Union’s consent.
By letter dated March 2, 1992, the Union requested
that the Respondent furnish it with certain information
necessary for and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining rep-
resentative of the unit. Since March 2, 1992, the Re-
spondent has failed and refused to furnish the Union
with the requested information.
By failing and refusing to honor the terms of its col-
lective-bargaining agreement with the Union in the
manner described above, and by failing and refusing to
provide relevant and necessary information to the
Union at the Union’s request, the Respondent has
failed and refused to bargain collectively and in good
faith with the Union as the limited exclusive collec-
tive-bargaining representative of the unit employees in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing to abide by the terms and
conditions of its collective-bargaining agreement with
the Union, and by failing and refusing to provide the
Union with relevant and necessary information on re-
quest, the Respondent has engaged in unfair labor
practices affecting commerce 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 de-
signed to effectuate the policies of the Act.
Having found that the Respondent unlawfully failed
to continue in full force and effect the terms and con-
ditions of employment of its 1989–1992 agreement
with the Union, we shall order it to comply with those
terms and conditions of employment. Specifically, we
shall order the Respondent to make unit employees
whole by remitting to the fringe benefit funds the con-
tractually required payments that would have been
made on behalf of unit employees but for the Respond-
ent’s failure to adhere to its agreement, with any inter-
est or other sums applicable to those payments to be
determined in accordance with the Board’s decision in
Merryweather Optical Co., 240 NLRB 1213 (1979).
We shall also require the Respondent to reimburse unit
employees, with interest, for any expenses or loss of
benefits they may have suffered as a result of its fail-
ure to make the contractually required fringe benefit
contributions, as prescribed in Kraft Plumbing & Heat-
ing, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981). All backpay amounts shall be com-
puted as in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), and inter-
est shall be computed as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent unlawfully failed
to furnish the Union with requested information, we
shall order it to provide that information at the Union’s
request.
ORDER
The National Labor Relations Board orders that the
Respondent, American Industries of Indiana, Inc.,
Hamilton, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to make the payments called
for in its collective-bargaining agreement with the
Union to the health and welfare and pension benefit
funds.
(b) Failing and refusing to furnish the Union with
requested information that is relevant to and necessary
for the Union’s performance of its duties as the limited
exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All carpenters in the employ of the Respondent,
excluding all other employees and all guards and
supervisors within the meaning of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
their rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole the unit employees and, on their be-
half, the health and welfare and pension benefit funds,
for any losses suffered as a result of the Respondent’s
failure since March 2, 1992, to adhere to the terms of
the 1989–1992 agreement, in the manner set forth in
the remedy section of this Decision and Order.
(b) On request, furnish the Union with the informa-
tion requested in paragraphs 1, 2, 3, 6, 7, and 8 of its
letter dated March 2, 1992.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, trust fund state-
ments, and all other documents and records necessary
to analyze the amount of backpay and the fringe bene-
fit payments due under the terms of this Order.
(d) Post at its facility in Hamilton, Ohio, copies of
the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
63AMERICAN INDUSTRIES
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, 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 Re-
spondent 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to make the payments
called for in our collective-bargaining agreement with
the Union to the health and welfare and pension bene-
fit funds.
WE WILL NOT fail and refuse to furnish the Union
with requested information that is relevant to and nec-
essary for the Union’s performance of its duties as the
limited exclusive collective-bargaining representative
of the employees in the following appropriate unit:
All carpenters in the employ of American Indus-
tries of Indiana, Inc., excluding all other employ-
ees and all guards and supervisors within the
meaning of the Act.
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 make whole, with interest, our unit em-
ployees and, on their behalf, the health and welfare
and pension benefit funds, for any losses they have
suffered because of our failure since March 2, 1992,
to adhere to the terms of our 1989–1992 agreement
with the Union.
WE WILL, on request, furnish the Union with the in-
formation requested in its letter dated March 2, 1992.
AMERICAN INDUSTRIES OF INDIANA,
INC.