Art Berger

National Labor Relations Board - Board Decisions

Apr 25, 1994

313 N.L.R.B. 1129 (N.L.R.B. 1994)

1129
313 NLRB No. 197
ART BERGER
1 Although a copy of the complaint and notice of hearing was sent
by certified mail, the Regional Office did not receive the return re-
ceipt from the Respondent nor evidence that the complaint and no-
tice of hearing was unclaimed by the Respondent. A respondent’s
failure or refusal to claim certified mail cannot serve to defeat the
purposes of the Act. See, e.g., Michigan Expediting Service, 282
NLRB 210 fn. 6 (1986). Member Browning would also rely on the
fact that correspondence subsequent to the complaint was received
and acknowledged by the Respondent at the same address to which
the complaint was sent, thereby presumptively establishing sufficient
service on the Respondent.
Art Berger, a sole proprietor d/b/a Art Berger and
Detroit Area Local 67, Operative Plasterers’
and Cement Masons International Association,
AFL–CIO. Case 7–CA–35151
April 28, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
Upon a charge filed by the Union on October 28,
1993, the Acting General Counsel of the National
Labor Relations Board issued a complaint on Decem-
ber 7, 1993, against Art Berger, a sole proprietor d/b/a
Art Berger, the Respondent, alleging that it has vio-
lated Section 8(a)(1) and (5) of the National Labor Re-
lations Act. Although properly served copies of the
charge and complaint,1 the Respondent failed to file an
answer.
On February 14, 1994, the Acting General Counsel
filed a Motion for Default Summary Judgment with the
Board. On February 17, 1994, 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 response. The allega-
tions in the motion are therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Default Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Default Summary Judg-
ment disclose that the Region, by letter dated January
7, notified the Respondent that unless an answer was
received by January 21, 1994, a Motion for Default
Judgment would be filed.
In the absence of good cause being shown for the
failure to file a timely answer, we grant the General
Counsel’s Motion for Default Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a sole proprietorship, doing busi-
ness in Romeo, Michigan, has been engaged in the
construction industry as a plastering contractor. During
the calendar year ending December 31, 1992, the Re-
spondent, in conducting its business operations, pur-
chased and received goods valued in excess of $50,000
at its Romeo, Michigan facility directly from points
outside the State of Michigan and from other enter-
prises located within the State of Michigan, each of
which other enterprises had received the goods directly
from points outside the State of Michigan. The Detroit
Association of Wall and Ceiling Contractors, Inc. (the
Association) is and has been at all times material here-
in an organization composed of employers engaged in
the construction industry and which exists, in whole or
part, for the purpose of representing employer-mem-
bers in negotiating and administering collective-bar-
gaining agreements with various labor organizations,
including the Union. During the calendar year ending
December 31, 1992, a representative period, the em-
ployer-members of the Association collectively had
gross revenues in excess of $1 million and in the
course and conduct of their business operations pur-
chased and caused to be delivered to their facilities lo-
cated within the State of Michigan products, goods,
and materials valued in excess of $50,000 received di-
rectly from points located outside the State of Michi-
gan. 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
All journeymen and apprentice plasterers employed
by the Respondent but excluding guards and super-
visors as defined in the Act (the unit) constitute a unit
of employees appropriate for the purposes of collective
bargaining pursuant to Section 9(b) of the Act. About
June 1, 1992, the Association and the Union entered
into a collective-bargaining agreement (the Association
Agreement), effective from June 1, 1992, through May
31, 1993. About March 9, 1993, the Respondent en-
tered into an Agreement for Non-Association Members
which at all material times bound the Respondent to
the terms and conditions of employment of the Asso-
ciation Agreement and authorized the Association to
be its collective-bargaining representative. About
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In the absence of any need to determine in this proceeding
whether the parties’ relationship is governed by Sec. 9 or by Sec.
8(f), Member Browning would not reach that issue.
3 Although not specifically alleged in the complaint, these matters
are presumptively mandatory subjects for the purposes of collective
bargaining inasmuch as they concern fringe benefits for employees.
March 9, 1993, the Respondent, an employer engaged
in the building and construction industry, granted rec-
ognition to the Union as the exclusive collective-bar-
gaining representative of the unit by entering into the
Agreement for Non-Association Members with the
Union for the period of June 1, 1992, to May 31,
1993, without regard to whether the majority status of
the Union has ever been established under the provi-
sions of Section 9 of the Act. During all times relevant
herein, the Union has been the recognized exclusive
collective-bargaining representative of the employees
in the unit within the meaning of Section 8(f) of the
Act.2
The Association Agreement provides in article V,
section 5, ‘‘Payment of Benefits,’’ that:
(a) the Respondent pay monies into various
fringe benefit funds on behalf of employees in the
Unit;
(b) the Respondent submit to the plan adminis-
trator monthly fringe benefit reports;
(c) the Respondent pay liquidated damages for
the late payment of fringe benefit funds.
Since on or about May 15, 1993, and continuing to
date, the Respondent has unilaterally and without
agreement with the Union failed and refused, and con-
tinues to fail and refuse, to apply the terms of the As-
sociation Agreement to unit employees by its failure to
abide by the terms described above, inter alia, by fail-
ing to make fringe benefit fund payments, to submit
fringe benefit reports, and to pay any liquidated dam-
ages.3 The Respondent’s actions constitute unilateral
modifications of the Association Agreement without
compliance with the provisions of Section 8(d) of the
Act.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively and in good faith with the exclusive collec-
tive-bargaining representative of its employees within
the meaning of Section 8(d), and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) 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. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing to make contractually
required contributions to the various fringe benefit
funds, submit monthly fringe benefit reports to the
plan administrator, and pay liquidated damages for the
late payment of fringe benefit funds, we shall order the
Respondent to submit the monthly reports to pay the
liquidated damages, and to make whole its unit em-
ployees by making all such delinquent contributions,
including any additional amounts due the funds in ac-
cordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). In addition, the Respondent
shall reimburse unit employees for any expenses ensu-
ing from its failure to make the required contributions,
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, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with inter-
est as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Art Berger, a sole proprietor d/b/a Art
Berger, Romeo, Michigan, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Since on or about May 15, 1993, unilaterally and
without agreement by the Union, or compliance with
the provisions of Section 8(d) of the Act, failing and
refusing to apply the terms of the Association Agree-
ment to unit employees by failing to make fringe bene-
fit fund payments, to submit fringe benefit reports, and
to pay any liquidated damages. The unit consists of the
following employees:
All journeymen and apprentice plasterers em-
ployed by the Respondent but excluding guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, 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) Submit the monthly reports and make whole the
unit employees by making all contributions it has
failed to make since May 15, 1993, by reimbursing
employees for their expenses, and by paying liquidated
damages, and other amounts due the funds, as set forth
in the remedy section of this decision.
(b) 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, and all other
records necessary to analyze the amounts due under
the terms of this Order.
1131ART BERGER
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
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.’’
(c) Post at its facility in Romeo, Michigan, copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
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.
(d) 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 unilaterally and without agreement by
the Detroit Area Local 67, Operative Plasterers’ and
Cement Masons International Association, AFL–CIO,
fail or refuse to apply the terms of the Association
Agreement to unit employees by failing, since May 15,
1993, to make fringe benefit fund payments, to submit
fringe benefit reports, or to pay any liquidated dam-
ages. The unit consists of the following employees:
All journeymen and apprentice plasterers em-
ployed by the Employer but excluding guards and
supervisors as defined in 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 submit the monthly reports and make
whole our unit employees by making all contributions
we have failed to make since May 15, 1993, by reim-
bursing employees for any expenses ensuing from our
failure to make the required contributions, and by pay-
ing liquidated damages and other amounts due the
funds as set forth in a decision of the National Labor
Relations Board.
ART BERGER, A SOLE PROPRIETOR D/B/A
ART BERGER