Audije Construction

National Labor Relations Board - Board Decisions

Dec 19, 1968

173 N.L.R.B. 1346 (N.L.R.B. 1968)

1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Felix Audije, d/b/a Audije Construction and Oper-
ating Engineers Local Union No. 3, International
Union of Operating Engineers , AFL-CIO. Case
37-CA-550
December 19, 1968
answer to the Board's Order or in opposition to the
Motion for Default Judgement.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND
ZAGORIA
Upon a charge filed by Operating Engineers Local
Union No. 3, International Union of Operating
Engineers, AFL-CIO, herein called the Union, the
General Counsel for the National Labor Relations
Board, by the Acting Regional Director for Region
20, issued a complaint and notice of hearing dated
July 30, 1968, against Felix Audije, d/b/a Audije
Construction, herein called the Respondent, alleging
that the Respondent had engaged in and was engaging
in unfair labor practices 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 charge, complaint, and notice of hearing were
duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on September
18, 1967, the Union was duly certified as the
exclusive bargaining representative of Respondent's
employees in the unit found appropriate,' that the
Respondent and the Union after several negotiating
sessions reached complete agreement concerning the
terms and conditions of a collective-bargaining agree-
ment, and that commencing on or about February 8,
1968, and at all times thereafter, Respondent has
refused to execute a written contract incorporating
the terms and conditions of such collective-bargaining
agreement. Despite several requests from the General
Counsel, the Respondent has failed to file an answer
to the complaint.
On October 1, 1968, the General Counsel filed
with the Board a Motion for Default Judgement
submitting that, in view of the Respondent's failure
to submit an answer to the complaint pursuant to the
Board's Rules and Regulations, Series 8, as amended,
Sections 102.20 and 102.21, no substantial issue as to
any material fact exists and moving that the pro-
ceeding be transferred to the Board. Thereafter, on
October 3, 1968, the Board issued an Order Trans-
ferring Proceeding to the Board and Notice to Show
Cause why the General Counsel's Motion for Default
Judgement should not be granted. The Respondent
has failed to file any memorandums, whatsoever, in
I Case 37-RC-1348
RULING ON THE MOTION FOR DEFAULT JUDGEMENT
Inasmuch as Respondent's failure to answer the
complaint constitutes, under the Board's Rules and
Regulations, Series 8, as amended, Sections 102.20
and 102.21, an admission of all the allegations of the
complaint, there are no matters requiring a hearing
before a Trial Examiner Accordingly, the General
Counsel's Motion for Default Judgement is granted.
On the basis of the record before it, the Board makes
the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a sole proprietor, engaged in the construction
of private and commercial real estate in the Territory
of Guam. Respondent, in the course and conduct of
his business operations during the past year, pur-
chased and received materials valued in excess of
$50,000 from suppliers located in the Territory of
Guam, who received those materials from outside the
Territory of Guam.
Respondent is now, and has been at all times
material herein, an employer engaged in commerce
and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The Unit
At all times material herein the following em-
ployees of the Respondent have constituted a unit
appropriate for collective bargaining within the mean-
ing of the Act:
All production and maintenance employees em-
ployed by Respondent at its Agana, Guam, opera-
tions, excluding office clerical employees, pro-
fessional employees , guards and supervisors as
defined in the Act.
173 NLRB No. 209
AUDIJE CONSTRUCTION
2. The Certification
On September 8, 1967, a majority of the em-
ployees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Regional Director for Region 20 of the National
Labor Relations Board, designated the Union as their
representative for the purposes of collective bar-
gaining with Respondent, and on September 18,
1967, the Regional Director certified the Union as the
exclusive bargaining representative of all the em-
ployees in said unit, and the Union continues to be
such representative.
B. The Respondent's Refusal To Bargain
Commencing on or about November 1967 and
thereafter, the Union and the Respondent held a
series of meetings for purposes of negotiating a
collective-bargaining agreement covering the em-
ployees in the above-described unit. On or about
February 8, 1968, Respondent and the Union reached
complete agreement concerning the terms and con-
ditions of a collective-bargaining agreement covering
the employees of said unit. Despite the afore-
mentioned agreement, the Respondent, commencing
on or about February 8, 1968, and at all times
thereafter, has refused to execute a written contract
incorporating the terms and conditions of aforesaid
collective-bargaining agreement
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative of
the employees of the Respondent in the appropriate
unit described above; that the Union, at all times
since September 18, 1967, has been and now is the
exclusive bargaining representative of all the em-
ployees in the aforesaid unit, within the meaning of
Section 9(a) of the Act; that the Respondent and the
Union have reached agreement on a collective-
bargaining agreement covering the employees in the
appropriate unit; and that commencing on or about
February 8, 1968, and at all times thereafter,
Respondent has refused to execute a written contract
incorporating the terms and conditions of the afore-
said collective-bargaining agreement. By such refusal,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of Respondent set forth in section III,
above, occurring in connection with its operations as
described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and com-
merce, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
THE REMEDY
1347
Having found that the Respondent has engaged 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 upon request sign and
execute a contract incorporating the terms and
conditions of the collective-bargaining agreement
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times
material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees
employed by Respondent at its Agana, Guam, oper-
ations, excluding office clerical employees, pro-
fessional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since September 18, 1967, the Union has been
and now is the certified and exclusive representative
of all employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about February 8, 1968, and
at all times thereafter, to sign and execute a written
contract incorporating the terms and conditions of
the collective-bargaining agreement covering the em-
ployees of Respondent in the aforesaid appropriate
unit, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, its em-
ployees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that Respondent, Felix
Audije, d/b/a Audije Construction, Agana, Guam, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing upon request of Operating Engineers
Local Union No. 3, International Union of Operating
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineers, AFL-CIO, to execute a written contract
incorporating the terms and conditions of the
collective-bargaining agreement of February 8, 1968.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) If requested to do so by the above-mentioned
labor organization, forthwith sign, execute, and
deliver a written contract incorporating the terms and
conditions of the collective-bargaining agreement of
February 8, 1968.
(b) Post at its Agana, Guam, place of business,
copies of the attached notice marked "Appendix."2
Copies of said notice, on forms provided by the
Regional Director for Region 20, shall, after being
duly signed by Respondent's representative, 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 Respondent to
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL, if requested to do so by Operating
Engineers Local Union No. 3, International
Union of Operating Engineers, AFL-CIO, sign
and execute the agreement reached on February 8,
1968, by and between the aforesaid labor
organization and Felix Audije, d/b/a Audije Con-
struction, with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment for the following unit-
All production and maintenance employees
employed by Felix Audije, d/b/a Audije Con-
struction, at its Agana, Guam, operations,
excluding office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
insure that said notices are not altered, defaced, or FELIx AUDIJE , D/B/A AUDIJE
covered by any other material. CONSTRUCTION
(c) Notify said Regional Director for Region 20, in
writing, within 10 days from the date of this Decision
and Order, what steps Respondent has taken to
comply herewith.
Dated
(Employer)
By
(Representative ) (Title)
2 In the event that this Order is enforced by a decree of a United
States Court of Appeals , there shall be substituted for the words "a
Decision and Order " the words "a Decree of the United States Court of
Appeals Enforcing an Order."
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Subregional
Office, Suite 308, 1311 Kapiolani Boulevard,
Honolu' Hawau 96814, Telephone 808-588-5797.