Can-Do, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1986

279 N.L.R.B. 819 (N.L.R.B. 1986)

CAN-DO, INC.
Can-Do , Inc. and The Carpenters District Council of
Detroit, Wayne , Oakland , Macomb, St. Clair,
Sanilac and Monroe Counties and Vicinities of
the United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO. Case 7-CA-23057
30 April 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND STEPHENS
Upon a charge filed by the Carpenters District
Council of Detroit, Wayne, Oakland, Macomb, St.
Clair, Sanilac and Monroe Counties and Vicinities
of the United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO on 25 January 1984, the
General Counsel of the National Labor Relations
Board issued a complaint on 23 February 1984
against the Company, the Respondent, alleging that
it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act. Although properly
served copies of the charge and complaint, the
Company has failed to file and answer.
On 12 April 1984 the General Counsel filed a
Motion for Default Summary Judgment. On 17
April 1984 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
Company filed no response. The allegations in the
motion are therefore undisputed.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Default Summary
Judgment
Section 102.20 of the Board's Rules and Regula-
tions provides that the allegations in the complaint
shall be deemed admitted if an answer is not filed
within 10 days from service of the complaint,
unless good cause is shown. The complaint states
that unless an answer is filed within 10 days of
service, "all of the allegations in the Complaint
shall be deemed to be admitted true and may be so
found by the Board." Further, the undisputed alle-
gations in the Motion for Default Summary Judg-
ment disclose that the Acting Regional Attorney,
by letter dated 8 March 1984, notified the Compa-
ny that unless an answer was filed by 21 March
1984, a Motion for Default Judgment would be
filed. On 12 March 1984 the Respondent filed for
bankruptcy under Chapter 7 in the United States
Bankruptcy Court of Eastern District of Michigan,
Southern Division, Case No. 84-00916. On 22
March 1984 counsel for the General Counsel ad-
vised Interim Trustee George Lakmak and the at-
819
torney for the Debtor, Marion Bonds, both deemed
agents of the Respondent, that unless an answer
was filed by 5 April 1984, a Motion for Default
Judgment would be filed. On 30 March 1984 the
Regional Director for Region 7, acting as agent for
the General Counsel, filed a Proof of Claim of the
National Labor Relations Board and Notice of
Pending Unfair Labor Practice Litigation with the
United States Bankruptcy Court of Eastern District
of Michigan, Southern Division, Case No. 84-
00916.
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 fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a Michigan corporation, is a gen-
eral contractor for construction and related jobs.
Its place of business is located in Roseville, Michi-
gan, where during the 12-month period ending 31
October 1983, a period representative of its oper-
ation, the Company was a member in good stand-
ing of the Associated General Contractors Associa-
tion Detroit Chapter, Inc., a multiemployer collec-
tive-bargaining association. The National Labor
Relations Board has asserted jurisdiction over
member-employers based on $50,000 annual nonre-
tail direct inflow and outflow jurisdictional stand-
ards including Parton-Mallow Company, Oak Park,
Michigan; Davis & Armstrong, Inc., Southfield,
Michigan; and Walbridge Aldinger Co., Livonia,
Michigan.
We find that the Company is an employer en-
gaged in commerce within the meaning of Section
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
A. The Unit and the Union 's Representative
Status
The Respondent is party to a collective-bargain-
ing agreement with the Union, effective from 1
June 1982 to 31 May 1984. Phillip Ferraro, the Re-
spondent 's vice president, granted a "Power of At-
torney" 21 October 1981 to the Associated General
Contractors of America Detroit Chapter, Inc.
(AGC), to enable AGC to negotiate on its behalf
and enter into collective -bargaining agreements
with various labor organizations including the
279 NLRB No. 108
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. The current collective-bargaining agree-
ment is the product of such negotiations. The
Union is the exclusive collective-bargaining repre-
sentative for the following unit of the Respondent's
employees:
All carpentry employees employed by Re-
spondent at or out of its facility at 25200 Chip-
pendale, Roseville, Michigan.
The Union has been recognized as the exclusive
collective-bargaining representative of the employ-
ees in the unit. Such recognition has been em-
bodied in successive collective-bargaining agree-
ments, including the current one.
B. The 8(a)(5) and (1) Violations
Since about 15 February 1983 the Respondent
has failed and refused to make payments to various
fringe benefit funds, except for the months of May,
June, and August 1983, as required by article V of
the current collective-bargaining agreement. In ad-
dition , since that date, the Respondent has failed to
pay liquidated damages on late and unpaid fringe
benefit fund payments as authorized by article V,
section F of the collective-bargaining agreement.
The Respondent has also refused and failed since
15 February 1983 to provide the Union with
monthly fringe benefit fund reports due on the 15th
of each month pursuant to article V, section G of
the collective-bargaining agreement . The Respond-
ent has also refused since 11 January 1984 to pro-
vide the Union with sufficient information to con-
duct meaningful audit of the Respondent's records
from 1 January 1983 to date, which it sought in
order to police and administer the collective-bar-
gaining agreement pursuant to article IV, section
E.
We find that the Respondent, by failing and re-
fusing since 15 February 1983 to make payments to
various fringe benefit funds and to pay liquidated
damages on late and unpaid fringe benefit fund
payments, has violated Section 8(a)(5) and (1) of
the Act.'
We also find that by failing and refusing to pro-
vide the Union with monthly fringe benefit fund
reports the Respondent has violated Section 8(a)(5)
and (1) of the Act.
We further find that the Respondent's failure and
refusal to provide the Union with sufficient infor-
mation to conduct a meaningful audit to police and
administer the collective-bargaining agreement is
violative of Section 8(a)(5) and (1) of the Act.
' In the recently issued Rapid Fur Dressing, 278 NLRB 905 (1986), the
majority rejected the same argument raised by the dissent here See par-
ticularly fn 4 of that Decision and Order
CONCLUSIONS OF LAW
1. By failing and refusing to make payments to
various fringe benefit funds as required by article
V of the current collective-bargaining agreement,
the Company 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.
2. By failing and refusing to pay liquidated dam-
ages on late or unpaid fringe benefits as required
by article V, section F of the current collective-
bargaining agreement , 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.
3. By failing and refusing to provide the Union
with monthly fringe benefit fund reports as re-
quired by article V, section G, the Respondent has
engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and and (7) Section 2(6) of the Act.
4. By failing and refusing to provide the Union
with sufficient information to conduct a meaningful
audit to police and administer the collective-bar-
gaining agreement , 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 necessary to effectuate the policies of the
Act.
We have found that the Respondent unlawfully
failed to make payments into various fringe benefit
funds established for the benefit of employees in
the bargaining unit and unlawfully failed to pay liq-
uidated damages on late and unpaid fringe benefits
as required by the collective-bargaining agreement.
We shall therefore order the Respondent to trans-
mit the required payments and required liquidated
damages to fringe benefit funds. The exact amounts
of such payments will be determined at the compli-
ance stage , 2 consistent with the Bankruptcy
2 Because the provisions of employee benefit fund agreements are van-
able and complex , the Board does not provide at the adjudicatory of a
proceeding for the addition of interest at a fixed rate on unlawfully with-
held fund payments We leave to the compliance stage the question of
whether the Respondent must pay any additional amounts into the fringe
benefits funds in order to satisfy our "make-whole" remedy These addi-
tional amounts may be determined , depending on 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 unlawful withholding action, which might in-
clude the loss of return on investment of the portions of funds withheld,
additional administrative costs, etc., but not collateral losses Merry-
weather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979)
CAN-DO, INC
Court's resolution of the Respondent 's petition.3
We shall also order the Respondent to reimburse
its employees for any expenses ensuing from its un-
lawful failure to make payments to the fringe bene-
fit funds , as set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn . 2 (1980), enfd . 661 F.2d 940 (9th
Cir. 1981 ). Backpay shall be made in a manner con-
sistent with the Board 's policy stated in Ogle Pro-
tection Service , 183 NLRB 682 (1970), with interest
as prescribed in Florida Steel Corp ., 231 NLRB 651
(1977).
We shall also order the Respondent to file the
monthly fringe benefit funds reports due on the
15th of each month , including those not filed since
15 February 1983.
Finally, we shall order the Respondent to pro-
vide sufficient information to allow the Union to
conduct a meaningful audit of the Respondent's
records from 1 January 1983 to the present.
ORDER
The National Labor Relations Board orders that
the Respondent, Can-Do, Inc., Roseville, Michi-
gan, its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to make required contri-
butions to various fringe benefit funds as required
by its collective-bargaining agreement with the
Union.
(b) Failing and refusing to pay liquidated dam-
ages on late and unpaid fringe benefit funds pay-
ments as required by the collective-bargaining
agreement.
(c) Failing to file monthly fringe benefit fund re-
ports due on the 15th of each month as required by
the collective-bargaining agreement.
(d) Failing to provide sufficient information to
the Union to allow it to conduct a meaningful audit
to police and administer the collective-bargaining
agreement.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
8 Consistent with the Supreme Court's opinion in NLRB Y Bildisco &
Bildisco, 465 U S 513 ( 1984), our remedy extends only to 12 March 1984,
the date the Respondent filed its Chapter 7 bankruptcy petition B,ldctco
held, in relevant part, that an employer does not violate Sec 8 (aX5) and
(1) by changing the terms and conditions of a collective-bargaining agree-
ment during the period between the filing of a bankruptcy petition and
the bankruptcy court's determination whether the collective-bargaining
agreement may be rejected
We are mindful that the Bankruptcy Amendments and Federal Judge-
ship Act of 1984, enacted by Congress 10 July 1984, modified Bddisco
The statute does not apply, however , to cases such as this where the
bankruptcy petition was filed prior to its enactment Pub L 98-353 §
541, 98 Stat 333, 390- 391 (1984)
821
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make the payments to the various fringe ben-
efit trust funds required by its 1 June 1982 to 31
May 1984 collective-bargaining agreement with the
Union, as well as liquidated damages on late and
unpaid fringe benefit fund payments, as provided in
the remedy section of this decision.
(b) Make unit employees whole for any loss of
benefits suffered as a result of the Respondent's
failure to make the fringe benefit fund payments re-
quired by its collective-bargaining agreement with
the Union, as provided in the remedy section of
this decision.
(c) File the monthly fringe benefit fund reports
on the 15th of each month as required by the col-
lective-bargaining agreement , including those not
filed since 15 January 1983.
(d) Provide the Union with sufficient information
to conduct a meaningful audit of the Respondent's
records from 1 January 1983 to the present.
(e) Post at its facility in Roseville, Michigan,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 7, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting.
For the reasons set forth in my dissent in Rapid
Fur Dressing, 278 NLRB 905 (1986), 1 dissent from
my colleagues' grant of the Motion for Default
Summary Judgment. The Respondent is alleged to
have violated Section 8(a)(5) and (1) by refusing to
make payments to various fringe benefit funds, re-
fusing to pay liquidated damages on late and
unpaid fringe benefit fund payments , and reffusing
to provide the Charging Party wiht the contrac-
tually required monthly fringe benefit fund reports
and sufficient information to enable it to conduct
an audit. There is insufficient evidence before us to
find that the Respondent has engaged in conduct
* 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 Nation-
al 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 "
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reflecting a substantial repudiation of the contract
or of its bargaining obligations. Without more, the
Respondent's refusal to make payments to unspeci-
fied fringe benefit funds, to pay liquidated damages,
to provide monthly reports and provide sufficient
information for an audit, amounts to nothing more
than a contract violation.' The Board is here, once
again , allowing itself to be used as a collection
agency . Accordingly, I would deny the Motion for
Default Summary Judgment.
i With respect to the Respondent 's refusal to provide sufficient infor-
mation for an audit , without specific evidence as to what information was
requested , the allegations also fail to establish that the Respondent violat-
ed its statutory duty to provide information Cf My separate opinion in
Can-Do, Inc, 279 NLRB 849, issued this date
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 ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to make required
contributions to various fringe benefit funds as re-
quired by our collective-bargaining agreement with
the Union.
WE WILL NOT fail and refuse to pay liquidated
damages on late and unpaid fringe benefit fund
payments as required by our collective-bargaining
agreement.
WE WILL NOT fail to provide the Union with
monthly fringe benefit fund reports due on the 15th
of each month as required by the collective-bar-
gaining agreement.
WE WILL NOT fail to provide sufficient informa-
tion to the Union to allow it to conduct a meaning-
ful audit to police and administer our collective-
bargaining agreement . The appropriate unit is:
All carpentry employees employed by Re-
spondent at or out of its facility at 25200 Chi-
pendale, Roseville, Michigan.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make the payments to the various
fringe benefit trust funds as required by our 1 June
1982 to 31 May 1984 collective-bargaining agree-
ment with the Union, as well as liquidated damages
on late and unpaid fringe benefit fund payments.
WE WILL make unit employees whole for any
loss of benefits suffered as a result of our failure to
make the fringe benefit fund payments required by
our collective-bargaining agreement with the
Union.
WE WILL file the monthly fringe benefit fund re-
ports on the 15th of each month as required by the
collective-bargaining agreement , including those
not filed since 15 February 1983.
WE WILL provide the Union sufficient informa-
tion on request to conduct a meaningful audit of
our records from 1 January 1983 to the present.
CAN-DO, INC.