Dix Construction

National Labor Relations Board - Board Decisions

Sep 27, 1991

304 N.L.R.B. 1133 (N.L.R.B. 1991)

1133
304 NLRB No. 150
DIX CONSTRUCTION
1 Counsel for the General Counsel was unable to locate the return receipt
for service of the complaint. In view of the Respondent’s failure to assert that
it did not receive the complaint and notice of hearing, or that its failure to
respond was based on improper service, as well as evidence that the Respond-
ent did receive all other documents such as the order scheduling hearing which
was mailed after the complaint and notice of hearing and was acknowledged
by return receipt, we find that counsel for the General Counsel’s failure to
produce the return receipt does not constitute a fatal defect in service. See gen-
erally Electrical Workers IBEW Local 11 (Anco Electrical), 273 NLRB 183,
191 (1984).
Dix Construction, Inc. and Massachusetts Laborers’
Benefit Funds. Case 1–CA–27780
September 27, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
Upon a charge filed by the Massachusetts Laborers’
Benefit Funds on November 8, 1990, the General
Counsel of the National Labor Relations Board issued
a complaint on December 17, 1990, against Dix Con-
struction, Inc., the Respondent, alleging that it has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act. The Respondent has failed to file an an-
swer.
On June 17, 1991, the General Counsel filed a Mo-
tion for Summary Judgment. On June 20, 1991, 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 re-
sponse. The allegations in the motion are therefore un-
disputed.
The National Labor Relations Board has delegated
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 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,1 unless good cause
is shown. The complaint states that unless an answer
is filed within 14 days of service, ‘‘all of the allega-
tions in the complaint shall be deemed to be admitted
to be true and shall be so found by the Board.’’ Fur-
ther, the undisputed allegations in the Motion for Sum-
mary Judgment disclose that counsel for the General
Counsel, by letter dated April 9, 1991, notified the Re-
spondent that unless an answer was received by April
16, 1991, a Motion for Summary 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 Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Massachusetts corporation, with
an office and place of business in Brockton, Massachu-
setts, has been engaged as a cement finishing contrac-
tor in the construction industry. During the 12-month
period preceding issuance of the complaint the Re-
spondent provided services valued in excess of
$50,000 for employers who are themselves directly en-
gaged in commerce. We find that the Respondent is an
employer 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 Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since December 17, 1986, the Massachusetts Labor-
ers’ District Council of the Laborers’ International
Union of North America, AFL–CIO has been the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All employees of the Respondent employed at its
Brockton, Massachusetts facility, in the classifica-
tions set forth in the 1988–1991 agreement, ex-
cluding all other employees, guards and super-
visors as defined in the Act.
The Associated General Contractors of Massachu-
setts, Inc. and Building Trades Employer’s Association
of Boston and Eastern Massachusetts, Inc., hereafter
jointly called the Associations, are organizations com-
posed of employers in the construction industry which
represent their employer-members in negotiating and
administering collective-bargaining agreements with
various labor organizations, including the Union. On
December 17, 1986, the Respondent executed an Ac-
ceptance of Agreement and Declaration of Trust with
the Union by which it agreed to be bound by the
1985–1988 agreement and any successor agreements.
On June 1, 1988, the Associations and the Union en-
tered into an agreement effective June 1, 1988, through
May 31, 1991.
The complaint alleges that since about June 20,
1990, the Respondent has failed and refused to remit
to the Union dues under article VIII and fringe benefit
payments which have become due since about June 20,
1990, under articles XI, XII, XIII, XIV, and XV of the
1988–1991 agreement as follows:
(a) Health and Welfare Fund
(b) Pension Fund
(c) Training Trust Fund
(d) Legal Services Fund
(e) Annuity Fund
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
We find that the Respondent by such acts and conduct
has failed and refused to bargain in violation of Sec-
tion 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing to remit to the Union author-
ized dues and fringe benefit payments to the Health
and Welfare Fund, Pension Fund, Training Trust Fund,
Legal Services Fund, and Annuity Fund, which have
become due under the collective-bargaining agreement
since about June 20, 1990, the Respondent has failed
and refused to bargain in good faith with the Union
and 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 de-
signed to effectuate the policies of the Act.
We shall order the Respondent to remit to the Union
authorized dues that have become due since June 20,
1990, as required by the collective-bargaining agree-
ment, with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). In addition, the Respondent shall remit to
the Union the fringe benefit contributions to the Health
and Welfare Fund, Pension Fund, Training Trust Fund,
Legal Services Fund, and Annuity Fund which have
become due since June 20, 1990, with any additional
amounts applicable to those payments to be computed
in accordance with the Board’s decision in
Merryweather Optical Co., 240 NLRB 1213 (1979).
The Respondent shall also reimburse its unit employ-
ees at the Brockton facility for any expenses resulting
from its failure to make its contractually required
fringe benefit remittances to the Union in the manner
set forth in Kraft Plumbing & Heating, 252 NLRB 891
(1980), enfd. 661 F.2d 940 (9th Cir. 1981).
ORDER
The National Labor Relations Board orders that the
Respondent, Dix Construction, Inc., Brockton, Massa-
chusetts, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Massa-
chusetts Laborers’ District Council of the Laborers’
International Union of North America, AFL–CIO, dur-
ing the term of the collective-bargaining agreement by
failing and refusing to remit to the Union authorized
dues and fringe benefit payments to the Health and
Welfare Fund, Pension Fund, Training Trust Fund,
Legal Services Fund, and Annuity Fund that have be-
come due since June 20, 1990.
(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) Make all contributions to the Health and Welfare
Fund, Pension Fund, Training Trust Fund, Legal Serv-
ices Fund, and Annuity Fund which have become due
since June 20, 1990, as required by the collective-bar-
gaining agreement, and remit all union authorized dues
and make unit employees whole, as set forth in the
remedy section of this decision. The appropriate unit
is:
All employees of the Respondent in the classifica-
tions set forth in the 1988–1991 agreement, ex-
cluding all other employees, guards and super-
visors as defined in the Act.
(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 amount of backpay
due under the terms of this Order.
(c) Post at its facility in Brockton, Massachusetts,
copies of the attached notice marked ‘‘Appendix.’’2
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 receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, 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 fail or refuse to bargain in good faith
with the Massachusetts Laborers’ District Council of
the Laborers’ International Union of North America,
AFL–CIO by failing and refusing to make contrac-
1135DIX CONSTRUCTION
tually-required payments to the Health and Welfare
Fund, Pension Fund, Training Trust Fund, Legal Serv-
ices Fund, and Annuity Fund, as well as remitting au-
thorized union dues to the Union.
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 make all contributions to the aforemen-
tioned funds and remit all authorized union dues with
interest that have become due since June 20, 1990, and
we will make unit employees whole. The unit is:
All employees in the classifications set forth in
the 1988–1991 agreement, excluding all other em-
ployees, guards and supervisors as defined in the
Act.
DIX CONSTRUCTION, INC.