CM Office Services

National Labor Relations Board - Board Decisions

Feb 5, 2003

338 N.L.R.B. 102 (N.L.R.B. 2003)

1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
CM Office Services, Inc., CM Services Group, Inc.,
CM Contractors, Inc., CM Contractors Services,
Inc., CM Leasing Services, Inc., a single em­
ployer and/or alter ego and Operative Plaster­
ers’ and Cement Masons’ International Associa­
tion Local No. 132, AFL–CIO. Case 9–CA–
39087
February 5, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
The General Counsel seeks summary judgment in this
case on the ground that the Respondent has failed to file an
answer to the complaint. Upon a charge and an amended
charge filed by the Operative Plasterers’ and Cement Ma-
sons’ International Association Local No. 132, AFL–CIO
(the Union), on February 15 and September 9, 2002, re­
spectively, the General Counsel issued the complaint on
September 12, 2002, against CM Office Services, Inc.,
CM Services Group, Inc., CM Contractors, Inc., CM Con-
tractors Services, Inc., and CM Leasing Services, Inc., a
single employer and/or alter ego (the Respondent), alleg­
ing that it has violated Section 8(a)(1) and (5) of the Act.
The Respondent failed to file an answer.
On October 24, 2002, the General Counsel filed a Mo­
tion for Summary Judgment and Memorandum in Sup-
port with the Board. On October 25, 2002, 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 alle­
gations in the motion are therefore undisputed.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations 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. In addition, the complaint affirmatively states
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted.1 Further, the undisputed allegations in the Mo-
1 The copy of the complaint served on the Respondent by regular
and certified mail, was subsequently returned by the postal service
marked as “unclaimed.” The Respondent’s failure or refusal to accept
certified mail or to provide for appropriate service cannot serve to
defeat the purposes of the Act. See, e.g., Michigan Expediting Service,
282 NLRB 210 fn. 6 (1986).
tion for Summary Judgment disclose that the Region, by
letter dated October 3, 2002, notified the Respondent that
unless an answer were received by October 16, 2002, a
Motion for Summary Judgment would be filed.
In the absence of good cause being shown for the fail­
ure to file a timely answer, we grant the Ge neral Coun­
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, CM Office Services, Inc., a cor­
poration, and CM Contractors, Inc., a corporation, have
been engaged in commercial construction in Columbus,
Ohio. At all material times, CM Services Group, Inc., a
corporation, has been engaged as a general contractor in
the construction industry in Columbus, Ohio. At all ma­
terial times, CM Contractors Services, Inc., a corpora­
tion, and CM Leasing Services, Inc., a corporation, have
been engaged in providing a labor pool in Columbus,
Ohio.
At all material times, CM Office Services, Inc., CM
Service Group, Inc., CM Contractors, Inc., CM Contrac­
tors Services, Inc., and CM Leasing Services, Inc., have
been affiliated business enterprises with common offi­
cers, ownership, directors, management, and supervision;
have formulated and administered a common labor pol-
icy; have shared common premises and facilities; have
provided services for and made sales to each other; have
interchanged personnel with each other; have interrelated
operations in areas of insurance, phone, purchasing, ac­
counting, bookkeeping, banking, and maintenance; have
intermingled finances with each other; and have held
themselves out to the public as a single-integrated busi­
ness enterprise.
Based on the operations described above, CM Office
Services, Inc., CM Services Group, Inc., CM Contrac­
tors, Inc., CM Contractors Services, Inc., and CM Leas­
ing Services, Inc., collectively called the Respondent,
have been a single-integrated business enterprise and a
single employer and/or alter ego within the meaning of
the Act.
During the 12-month period preceding the issuance of
the complaint, the Respondent, in conducting its opera­
tions described above, performed services valued in ex­
cess of $50,000 for enterprises within the State of Ohio,
each of which, in turn, satisfies the Board’s direct juris­
dictional standards on an annual basis.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
338 NLRB No. 102
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(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, the unit,
constitute a unit appropriate for the purposes of collec­
tive bargaining within the meaning of Section 9(b) of the
Act:
All employees of Respondent engaged in the finishing
of concrete construction, including the foremanship of
same such as buildings, bridges, silos, elevators, smoke
stacks, curbs and gutters, sidewalks, streets and roads,
paving alleys and roofs, of mass or reinforced concrete
slab and all flat surfaces of cement, rock asphalt, and
laying and spreading and finishing of all types of
bituminous concrete, whether laid free hand or in pre-
cast form on the job, including all types of asphalt
floors and pavements, the operation of all power driven
floats, troweling machines, vibrating screeds and the
operation of laser screed machines.
About August 7, 2000, the Respondent, through CM
Contractors, Inc., agreed to be bound by the collective-
bargaining agreement between the Union and the Central
Ohio AGC, AGC of Ohio, Associated General Contrac­
tors of America, Inc. (the Association), and agreed to be
bound to such future agreements between the Associa­
tion and the Union, unless timely notice was given to
cancel or modify said agreement.
The Respondent, an employer in the building and con­
struction industry, granted recognition to the Union as
the exclusive collective-bargaining representative of the
unit without regard to whether the majority status of the
Union had been established under the provisions of Sec­
tion 9(a) of the Act. Such recognition has been embodied
in successive collective-bargaining contracts, the most
recent of which is effective, having automatically re­
newed, through May 31, 2003.
For the period from August 7, 2000, when the Respon­
dent recognized the Union, to May 31, 2003, when the
automatically renewed contract expires, based on Section
9(a) of the Act, the Union has been and is the limited
exclusive collective-bargaining representative of the unit.
Since about August 16, 2001, and continuing thereaf­
ter, the Respondent has failed and refused to pay the
wages and fringe benefits required by the contract de-
scribed above.
About September 6, 2001, the Respondent repudiated
the collective-bargaining agreement described above,
between the Association and the Union to which the Re­
spondent is bound.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon­
dent has been failing and refusing to bargain collectively
with the limited exclusive collective-bargaining represen­
tative of its employees, 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 cer­
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(1)
and (5) by failing and refusing to pay contractually re­
quired earnings and other benefits to the unit employees
since August 16, 2001, and by repudiating the above-
described collective-bargaining agreement with the Un­
ion since September 6, 2001, we shall order the Respon­
dent to honor the terms and conditions of the collective-
bargaining agreement expiring on May 31, 2003, and any
automatic renewal or extension of it. In addition, we
shall order the Respondent to make whole the unit em­
ployees for any loss of earnings or benefits they may
have suffered as a result of the Respondent’s failure to
pay contractually required wages and fringe benefits
since August 16, 2001. In order to remedy the Respon­
dent’s failure to make contractually required fringe bene­
fit payments, the Respondent shall be required to make
all contractually required benefit payments or contribu­
tions that have not been made since August 16, 2001,
including any additional amounts applicable to such de­
linquent payments in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 (1979). In addition,
the Respondent shall reimburse unit employees for any
expenses ensuing from its failure to make such required
payments or contributions, as set forth in Kraft Plumbing
& Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661
F.2d 940 (9th Cir. 1981). All payments to unit employ­
ees shall be computed in the manner set forth in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).2
2 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin­
quent contributions during the period of the delinquency, the Respon­
dent will reimburse the employee, but the amount of such reimburse­
ment will constitute a setoff to the amount that the Respondent other-
wise owes the fund.
CM OFFICE SERVICES 3
ORDER
The National Labor Relations Board orders that the
Respondent, CM Office Services, Inc., CM Services
Group, Inc., CM Contractors, Inc., CM Contractors Ser­
vices, Inc., and CM Leasing Services, Inc., a single em­
ployer and/or alter ego, Columbus, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to comply with the terms of its
collective-bargaining agreement expiring on May 31,
2003, and any automatic renewal or extension of it, with
Operative Plasterers’ and Cement Masons’ International
Association Local No. 132, AFL–CIO, as the limited
exclusive collective-bargaining representative of the em­
ployees in the following unit, by failing and refusing to
pay contractually required wages and fringe benefits and
by repudiating the agreement. The unit is:
All employees of Respondent engaged in the finishing
of concrete construction, including the foremanship of
same such as buildings, bridges, silos, elevators, smoke
stacks, curbs and gutters, sidewalks, streets and roads,
paving alleys and roofs, of mass or reinforced concrete
slab and all flat surfaces of cement, rock asphalt, and
laying and spreading and finishing of all types of
bituminous concrete, whether laid free hand or in pre-
cast form on the job, including all types of asphalt
floors and pavements, the operation of all power driven
floats, troweling machines, vibrating screeds and the
operation of laser screed machines.
(b) In any like or related manner interfering with, re-
straining, 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) Honor the terms of the collective-bargaining
agreement described above during the term of the agree­
ment and any automatic renewal or extension of it, in­
cluding by paying contractually required wages and
fringe benefits.
(b) Make whole, with interest, the unit employees for
any loss of wages and other benefits they may have suf­
fered as a result of its failure to abide by the agreement,
and any automatic renewal or extension of it, since Au-
gust 16, 2001, as set forth in the remedy section of this
decision.
(c) Make all contractually required fringe benefit fund
contributions, if any, that have not been made on behalf
of unit employees since August 16, 2001, and reimburse
unit employees for expenses ensuing from its failure to
make the required payments in the manner set forth in
the remedy section of this decision.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records including an elec­
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Columbus, Ohio, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre­
sentative, shall be posted by the Respondent and main­
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus­
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced or covered by any other material. In the event
that, during the pendency of these proceedings, the Re­
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du­
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since August 16, 2001.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C., February 5, 2003
Robert J. Battista, Chairman
Wilma B. Liebman, Member
R. Alexander Acosta, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
3 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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 vio­
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to comply with the terms
of our collective-bargaining agreement expiring on May
31, 2003, and any automatic renewal or extension of it,
with Operative Plasterers’ and Cement Masons’ Interna­
tional Association Local No. 132, AFL–CIO, as the lim­
ited exclusive collective-bargaining representative of the
employees in the following unit, by failing and refusing
to pay contractually required wages and fringe benefits
and by repudiating the agreement. The unit is:
All of our employees engaged in the finishing of con­
crete construction, including the foremanship of same
such as buildings, bridges, silos, elevators, smoke
stacks, curbs and gutters, sidewalks, streets and roads,
paving alleys and roofs, of mass or reinforced concrete
slab and all flat surfaces of cement, rock asphalt, and
laying and spreading and finishing of all types of
bituminous concrete, whether laid free hand or in pre-
cast form on the job, including floors and pavements,
the operation of all power driven floats, troweling ma-
chines, vibrating screeds and the operation of laser
screed machines.
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 honor the terms of the collective-bargaining
agreement described above during the term of the agree­
ment and any automatic renewal or extension of it, in­
cluding by paying contractually required wages and
fringe benefits.
WE WILL make whole, with interest, the unit employ­
ees for any loss of earnings and other benefits they may
have suffered as a result of our failure, since August 16,
2001, to abide by the agreement and any automatic re­
newal or extension of it.
WE WILL make all contractually required fringe benefit
fund contributions, if any, that have not been made on
behalf of unit employees since August 16, 2001, and
reimburse unit employees for expenses ensuing from its
failure to make the required payments with interest.
CM OFFICE SERVICES, INC., CM SERVICES
GROUP, INC., CM CONTRACTORS, INC., CM
CONTRACTORS SERVICES, INC., CM LEASING
SERVICES, INC., A SINGLE EMPLOYER AND/OR
ALTER EGO