Grand Flooring Co.

National Labor Relations Board - Board Decisions

Mar 30, 1984

269 N.L.R.B. 648 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grand Flooring & Plastering Company and Local
115, Operative Plasterers' and Cement Masons'
International Association of the United States
and Canada, AFL-CIO. Case 7-CA-21729
30 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 8 February
1983 the General Counsel of the National Labor
Relations Board issued a complaint 16 March 1983
against the Company, the Respondent, alleging that
it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act. The complaint alleges
that since about 8 August 1982 the Respondent has
failed and refused to make contractual payments
into various employees fringe benefit funds. Al-
though properly served copies of the charge and
complaint, the Respondent has failed to file an
answer.
On 12 September 1983 the General Counsel filed
a motion to transfer the case to the Board and for
Default Judgment. On 5 October 1983 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 did
not file a 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 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 Judgment dis-
close that the General Counsel, by letters dated 18
May and 20 June 1983, notified the Respondent
that unless an answer was received immediately, a
Motion for Default 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 Default Judgment.'
I In granting the General Counsel's Motion for Default Judgment,
Chairman Dotson specifically relies on the total failure of the Respondent
to contest either the factual allegations or the legal conclusions of the
269 NLRB No. 99
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Michigan corporation, is a
subcontractor engaged in installing flooring and
plastering with a principal place of business in
Grand Rapids, Michigan, where it annually pur-
chases and receives goods and materials valued in
excess of $50,000 directly from suppliers outside
the State of Michigan. We find that the Respond-
ent 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
A. The Unit
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 plasterer employees employed by the Re-
spondent at its Grand Rapids, Michigan facili-
ty, but excluding office clerical employees,
guards and supervisors as defined in the Act.
B. The Respondent's Refusal to Bargain
The Union has been the exclusive representative
for purposes of collective bargaining of the Re-
spondent's employees in the unit described above
by virtue of a collective-bargaining agreement ef-
fective by its terms from I June 1982 through 30
April 1983 and, by virtue of Section 9(a) of the
Act, has been the exclusive bargaining representa-
tive of all employees in the above unit.
Since about 8 August 1982 the Respondent has
unilaterally failed and refused to make payments
into various employees' fringe benefit funds for the
benefit of its employees as required by the collec-
tive-bargaining agreement.
We find that, by this conduct, the Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
CONCLUSIONS OF LAW
1. Grand Flooring & Plastering Company is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
General Counsel's complaint. Thus, the Chairman regards this proceeding
as being without precedential value.
648
GRAND FLOORING CO.
2. Local 115, Operative Plasterers' and Cement
Masons' International Association of the United
States and Canada, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All plasterer employees employed by the Re-
spondent at its Grand Rapids, Michigan facility,
but excluding office clerical employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. At all times material here, the Union has been
the exclusive collective-bargaining representative
of all the employees in the appropriate unit for the
purposes of collective bargaining within the mean-
ing of Section 9(a) of the Act.
5. The Respondent has committed unfair labor
practices within the meaning of Section 8(a)(5) and
(1) by unilaterally failing and refusing to make pay-
ments into various employees' fringe benefit funds
for the benefit of its employees as required by the
collective-bargaining agreement between the par-
ties, effective by its terms from 1 June 1982
through 30 April 1983.
6. The described conduct is an unfair labor prac-
tice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, we shall order that
it cease and desist and take certain affirmative
action designed to effectuate the policies of the
Act. Accordingly, having found that the Respond-
ent failed and refused to make payments into vari-
ous employee fringe benefit funds as required by
the collective-bargaining agreement between the
parties without prior notice to or bargaining with
the Union, we shall order the Respondent to pay
into the appropriate funds all those contributions it
has failed to pay by the unilateral discontinuance of
contractual payments about 8 August 1982. See
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979). 2 If the employees incurred any expenses
due to the Respondent's failure to make the above
payments, we shall also require the Respondent to
reimburse the employees for those expenses, plus
interest to be computed in the manner set forth in
Florida Steel Corp., 231 NLRB 651 (1977).
2 Member Hunter finds it necessary to leave to the compliance stage of
this proceeding the identification of the particular funds which would be
mandatory subjects of bargaining and therefore eligible for the remedy
granted by the Board's Order.
ORDER
The National Labor Relations Board orders that
the Respondent, Grand Flooring & Plastering
Company, Grand Rapids, Michigan, its officers,
agents, successors, and assigns, shall
i. Cease and desist from
(a) Refusing to bargain collectively with the
Union as the exclusive representative of its employ-
ees in the unit described below by unilaterally dis-
continuing its contributions to various employees'
fringe benefit funds for the benefit of its employees
as set forth in the collective-bargaining agreement
between the parties. The appropriate unit is:
All plasterer employees employed by the Re-
spondent at its Grand Rapids, Michigan facili-
ty, but excluding office clerical employees,
guards and supervisors as defined in the Act.
(b) 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.
(a) Pay into the appropriate funds all those con-
tributions it has failed to pay by the unilateral dis-
continuance of contractual payments about 8
August 1982 and reimburse the employees for any
expenses they may have incurred as a result of the
Respondent's unlawful conduct in the manner set
forth in the remedy section of the decision.
(b) 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
amount of backpay due under the terms of this
Order.
(c) Post at its Grand Rapids, Michigan facility
copies of the attached notice marked "Appendix."3
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.
I 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
649
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent 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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Local 115, Operative Plasterers' and Cement
Masons' International Association of the United
States and Canada, AFL-CIO, as your exclusive
representative in the appropriate unit by unilateral-
ly discontinuing contributions to the employees'
fringe benefits funds set forth in the collective-bar-
gaining agreement. The appropriate unit is:
All plasterer employees employed by us at our
Grand Rapids, Michigan facility, but excluding
office clerical employees, guards and supervi-
sors as defined in the Act.
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 pay into the appropriate funds all the
contributions we have failed to make, and WE
WILL reimburse our employees for any expenses
they may have incurred as a result of our discon-
tinuance of payments.
GRAND FLOORING & PLASTERING
COMPANY
650