Exco Contracting, Ltd.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1120 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
Exco Contracting, Ltd. and International Union of
Operating Engineers, Local 324, 324-A, 324-B,
324-C, and 324-D, AFL-CIO. Case 7-CA-
19023
May 28, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On August 7, 1981, Administrative Law Judge
William A. Gershuny issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief, and the Charg-
ing Party filed an answer to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Exco Contracting, Ltd., Detroit, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Substitute the following for paragraph 2(d):
"(d) Make whole its employees for any and all
losses they may have suffered attributable to Re-
spondent's nonpayment into the above specified
funds, and pay into the funds liquidated damages as
provided for in the collective-bargaining agree-
ments between Respondent and the Union."
2. Substitute the attached notice for that of the
Administrative Law Judge.
The Administrative L aw Judge inadvertently failed to set forth in his
Decision that Respondent is engaged in commerce within the meaning iof
Sec. 2(6) and (7) of the Act, and that International Union of Operating
Engineers is a labor organization within the meaning of Sec 2(5) of the
Act, as alleged in the complaint. Respondent has admitted those allega-
tions either in its answer or at the hearing. Accordingly, we hereby cor-
rect such inadvertency and find that Respondent is engaged in commerce
within the meaning of Sec. 2(6) and (7) of the Act, and that the Union is
a labor organization within the meaning of Sec. 2(5) of the Act
2 The Administrative Law Judge inadvertently failed toi include the
narrow injunctive cease-and-desist paragraph in the notice We shall cor-
rect the notice accordingly
261 NLRB No. 158
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONA. LABOR REI ATIONS BOARD
An Agency of the United States Government
WE WIl NOT refuse to allow the audit re-
quested by the Union of our payroll books and
records, including but not limited to all books
of original entry, payroll records, canceled
checks, check stubs, and payroll returns from
January 1980 to the present, as requested by
the auditor.
WE WILL NOT refuse to bargain collectively
with International Union of Operating Engi-
neers, Local 324, 324-A, 324-B, 324-C, and
324-D, AFL-CIO, as the exclusive bargaining
representative of our employees coming within
the jurisdiction of the Union.
WE WIIL NOT alter the terms and conditions
of employment without notifying the Union
and affording the Union an opportunity to bar-
gain.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE wll.l make whole our employees for
any and all losses they may have suffered at-
tributable to our nonpayment into the various
fringe benefit funds, and wI' witl. pay into
said funds liquidated damages as provided for
in the collective-bargaining agreements be-
tween us and the Union.
WE wI.. file all reports required by the ad-
ministrators of the fringe benefit funds, as pro-
vided by our agreement with the Union, in a
timely manner.
Exco CONTRACTING, LTD.
DECISION
WtII AM A. GIRSHIUNY, Administrative Law Judge:
A hearing was held in the above-captioned matter on
July 10, 1981. The parties at the hearing waived the right
to file briefs and I made findings of fact and conclusions
of law on the record. Accordingly, a hearing having
been held, oral argument having been heard, and findings
of fact and conclusions of law having been duly rendered
on the record, I find a violation as set forth in the com-
plaint.
It is ordered that the Respondent, Exco Contracting,
Ltd., Detroit, Michigan, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
1120
EXCO CONTRACTING, LTD.
(a) Making delinquent payments into fringe benefit
funds established by the collective-bargaining agreement
between Exco Contracting, Ltd., hereinafter Respondent,
and International Union of Operating Engineers, Local
324, 324-A, 324-B, 324-C, and 324-D, AFL-CIO, here-
inafter the Union; failing to make required reports; and
refusing to allow an audit when requested by the Union,
in order to police the administration of the contract, of
all payroll books and records, including, but not limited
to, all books of original entry, payroll records, canceled
checks, check stubs, and quarterly returns from JanuarN
1980 to the present.
(b) Unilaterally altering terms and conditions of em-
ployment without notifying the Union and affording the
Union an opportunity to bargain.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Make timely payments accompanied by required
reports to the various fringe benefit funds established by
collective-bargaining agreements between Respondent
and the Union.
(b) Allow an audit of all payroll books and records in-
cluding but not limited to all books of original entry,
payroll records, canceled checks, check stubs, and quar-
terly payroll returns, as determined necessary by the
auditor from January 1980 to the present.
(c) Make all fringe benefit payments owed since July
1980 to the various fringe benefit funds established by
the collective-bargaining agreements between Respond-
ent and the Union.
(d) Make whole its employees and the funds for any
and all losses they have suffered attributable to Respond-
ent's nonpayment, including loss of return on investment,
additional administrative costs, expenses which would
have been covered by the health and welfare plan, and
liquidated damages as provided for in the collective-bar-
gaining agreements between Respondent and the Union.
(e) Preserve and, upon 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 determine the amount of money
owing to the funds or employees.
(f) Upon request, bargain with the above-named labor
organization as exclusive representative of all employees
in the aforesaid unit with respect to rates of pay, wages,
hours, and other terms and conditions of employment.
(g) Post at its current place of business copies of the
attached notice marked "Appendix." Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(h) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, 2 what
steps have been taken to comply herewith.
' In the e'ent that this Order is enforced bh a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National L abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National I.ahor Relations Board "
2 In the event no exceptions are filed as provided by Sec 102 .46 of the
Rules ;lind Regulations of the National lIabor Relations Board, the find-
ilgs, conclusions, and recommended Order herein shall. as provided in
Sec 102 48 of the Rules and Regulations, bhe adopted by the Board and
hecome its findings, conclusions, and Order, and all objections thereto
shall he deemed waived for all purposes.
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