C.S.E. Contract Cleaning

National Labor Relations Board - Board Decisions

Apr 14, 1987

283 N.L.R.B. 641 (N.L.R.B. 1987)

C.S.E. CONTRACT CLEANING
C.S.E. Contract Cleaning and Service Employees
International Union, Local 254, AFL-CIO.
Case 1-CA-23800
14 April 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
Upon a charge filed by Service Employees Inter-
national Union, Local 254, AFL-CIO (the Union)
30 April 1986 and an amended charge filed 12 June
1986„ the General Counsel of the National Labor
Relations Board issued a complaint 23 June 1986
against C.S.E. Contract Cleaning (the Company or
the Respondent) alleging that it has violated Sec-
tions 8(a)(5) and (1) and 8(d) of the National Labor
Relations Act., Although properly served copies of
the charge and complaint, the Company has failed
to file an answer,
On 9 February' 1987 the General Counsel filed a
Motion for Summary Judgment. On 12 February
1987 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 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 to be true and shall
be so found by the Board." Further, the undisputed
allegations in the Motion for Summary Judgment
disclose that by letter dated 25 August 1986 the
Company was notified that unless an answer was
received by, 8 September 1986 a Motion for Sum-
mary Judgment 'would be filed. In addition, on 9
October 1986, copies of the charge, amended
charge, complaint, and notice of hearing were
hand-delivered to the Company.
In' the absence of good cause being shown for
the failure to file a timely answer, we grant the
General Counsel's Motion for Summary Judgment.
Oil the entire record, the Board makes ' the fol-
lowing
283 NLRB No. 95
FINDINGS OF FACT
1. JURISDICTION
641
The Company, a corporation with an office and
place of business in Brookline, Massachusetts, is en-
gaged in the business of providing cleaning services
to the New England Conservatory of Music. -
During the calendar year ending 15 June 1986, the
Company provided services valued in excess of
$50,000 directly to the New England Conservatory
of Music. During the calendar year ending 15 June
1986, the New England Conservatory of Music de-
rived gross revenues in excess of $1 million, which
amount excludes contributions which, because of
limitation by the grantor, are not available for op-
erating expenses. During the calendar year ending
15 June 1986, the New England Conservatory of
Music received goods and materials at its Boston,
Massachusetts location valued in excess of $5000
from points directly outside the Commonwealth of
Massachusetts. We find,that the Company is an em-
ployer engaged 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 Sec-
tion 2(5) of the Act.
H. ALLEGED UNFAIR LABOR PRACTICES
A. The Unit and the Union's Representative
Status
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b), of the
Act:
All full-time and regular part-time employ-
ees employed by the Respondent engaged in
the Contract Building Cleaning Industry,
wherever employed in the covered territory
performing janitorial services, including all
janitors, porters, cleaners, doormen, elevator
operators, starters, handymen and groundsmen,
maintenance tradesmen if not previously cov-
ered by agreements with other unions, but ex-
cluding all executive employees, salaried su-
pervisors, sales employees, clerical employees,
hourly paid supervisors; foremen, and employ-
ees who do not regularly work in excess of fif-
teen hours per week.
Since 1981 the Union has been the designated ex-
clusive collective-bargaining representative 'of the
employees in the unit, and since 1981 the Union
has been recognized as such representative by the
Respondent. Such recognition has been embodied
in successive collective-bargaining agreements, the
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
most recent of which 'is effective by its terms for
the period of 1 September 1984 to 31 August 1987.
At all times since 1981 the Union, by virtue of
Section 9(a) of the Act, has been , and is, the exclu-
sive representative of the unit employees for, the
purposes of collective bargaining with respect to
rates of pay , wages, hours of employment, and
other terms and conditions of employment.
B.'The Refusal to Bargain
About January 1986 the Respondent failed to
continue in full force and effect all the terms and
conditions of the 1984-1987 ,contract by failing and
.refusing - to- remit contributions to the Service Em-
ployees Pension Fund as required by article XIII
of the 1984-1987 contract, payments for employee
health benefits to the Boston Building Service Em-
ployees Trust Fund as ' required by article XII of
the 1984-1987 contract, ' and union dues to the
Union as required by article XXXIII of the 1994-
1987 contract. -
The terms -and conditions ' of the agreement
which ' the Respondent ' failed to continue in full
force and effect
,
are terms and conditions of em-
ployment of - unit employees and ' are mandatory
subjects of bargaining. The Respondent engaged in
such conduct without prior , notice to and without
having afforded the Union the opportunity to ne-
gotiate and bargain as the exclusive representative
of the Respondent 's employees . We fmd that the
Respondent has failed and refused to bargain col-
lectively with the representative of its employees
and has thereby violated Sections 8(a)(5) and (1)
and 8(d) of the Act.
CONCLUSIONS OF LAW
By failing and refusing to remit contributions to
the- Service Employees Pension Fund, payments
for employee health benefits to the Boston Building
Service Employees Trust Fund , and union dues to
the, Union , as required by the 1984-1987 contract,
the; .Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of
Section 8 (a)(5) and (1), Section 8(d), 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 ' designed to effectuate the policies of - the
Act.
We shall, inter , alia, order the - Respondent to
make all contributions to the Service Employees
Pension Fund and payments for employee health
benefits to the Boston Building Service Employees
Trust Fund required by its collective-bargaining
agreement with the Union.' ' We shall also order
the Respondent to reimburse its employees for any
expenses ensuing from its unlawful failure to make
payments to the fringe benefit funds, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981). All pay-
ments to employees shall be made with interest as
prescribed in Florida Steel Corp, 231 NLRB 651
(1977). We shall also-order the Respondent to pay
union dues to the Union, 2 with interest as pre-
scribed in Florida Steel Corp., supra.3
ORDER
The National'Labor Relations Board-orders that
the Respondent, C.S.E. Contract Cleaning, Brook-
line, Massachusetts, its 'officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to make contributions to
the Service Employees Pension Fund as required
by its 1984-1987 contract with the Union.
(b) Failing and refusing to make payments for
employee health benefits to the Boston Building
Service Employees Trust' Fund as required by its
1984-1987 contract with the Union.
(c) Failing and refusing to pay union dues to the
Union as required by its 1984-1987 contract with
the Union.
(d) 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.
2. Take the following affirmative, action neces-
sary to effectuate the policies of the Act.
1 Because the provisions of employee benefit fund agreements are vari-
able and , complex, the Board does not provide for the addition of a-fixed
rate of interest on-unlawfully withheld fund payments at the adjudicatory
stage of a proceeding . We leave to the compliance stage the question
whether the Respondent must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy. Depending upon the
circumstances of each case, these additional amounts maybe determined
by reference to provisions in the documents governing the funds ,at issue
and, where there are no governing provisions , by evidence of any losses
directly attributable to the unlawful withholding , which might include
the loss of return on investment'of the portion of funds withheld, addi-
tional administrative `costs, etc ., but not collateral losses. Merryweather
Optical Co., 24Q NLRB 1213, 1-216 fa. 7 (1979).
2 It is not clear from the complaint whether the Respondent 's remis-
sion of union dues to'the Union, as required by art. XXXIII of the con-
tract, is pursuant to checkoff authorizations signed by the unit employees
We therefore shall require the Respondent to remit such dues to the
Union only if the employees have executed the appropriate checkoff au-
thorizations.
3 The General Counsel has requested a visitatorial clause authorizing
the Board, for compliance purposes , to obtain discovery from the Re-
spondent 'under the Federal Rules of Civil Procedure subject to the su-
pervision of the United States court of appeals enforcing this Order.
Under the circumstances of` this case, we find it unnecessary to include
such a clause. Accordingly, we deny the General Counsel' s request
C.S.E. CONTRACT CLEANING
(a) Make contributions to the Service Employees
Pension Fund required by its 1984-1987 contract
with the Union, as provided in the remedy section
of this decision.
(b) Make payments for employee health benefits
to the Boston Building Service Employees Trust
Fund required by its 1984-1987 contract with the
Union, as provided in the remedy section of this
decision.
(c) Pay union dues to the Union as required by
its 1984-1987 contract with the Union, as provided
in the remedy section of this decision.
(d) 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.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amounts due under the terms of this Order.
(f) Post at its facility in Brookline, Massachusetts,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, 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.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 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."
APPENDIX
643
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 contribu•.
tions to the Service Employees Pension Fund as re-
quired by our 19841987 contract with the Union.
WE WILL NOT fail and refuse to make payments
for employee health benefits to the Boston Building
Service Employees Trust Fund as required by our
1984-1987 contract with the Union.
WE WILL NOT fail and refuse to pay union dues
to the Union as required by our 19 `84-1987 contract
with the , Union.
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 contributions to the Service Em-
ployees Pension Fund as required by our 1984-
1987 contract with the Union.
WE WILL make payments for employee health
benefits to the Boston Building Service Employees
Trust Fund as required by our 1984-1987 contract
with the Union.
WE WILL pay union dues to the Union as re-
quired by our 1984-1987 contract with, the Union.
WE WILL make our unit employees whole for
any loss of benefits suffered as a result of our fail-
ure to make the fringe benefit payments required
by our collective-bargaining agreement with the
Union . The appropriate unit is:
All full-time and regular part-time employ-
ees employed by us engaged in the Contract
Building Cleaning Industry, wherever em-
ployed in the covered territory performing
janitorial services, including all janitors, por-
ters, cleaners , doormen, elevator operators,
starters, handymen and groundsmen, mainte-
nance tradesmen if not previously covered by
agreements with other unions, but excluding
all executive employees, salaried supervisors,
sales employees, clerical employees , hourly
paid supervisors , foremen, and employees who
do not regularly work in excess of fifteen
hours per week.
C.S.E. CONTRACT CLEANING