Harabedian Paving Co.

National Labor Relations Board - Board Decisions

Apr 14, 1994

313 N.L.R.B. 1079 (N.L.R.B. 1994)

1079
313 NLRB No. 181
HARABEDIAN PAVING CO.
Harabedian Paving Company and Operating Engi-
neers’ Local 324 Fringe Benefit Funds. Case 7–
CA–35228
April 14, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
Upon a charge filed on November 17, 1993, the
Acting General Counsel of the National Labor Rela-
tions Board issued a complaint on December 23, 1993,
against Harabedian Paving Company, the Respondent,
alleging that it has violated Section 8(a)(1) and (5) of
the National Labor Relations Act. Although properly
served copies of the charge and complaint, the Re-
spondent failed to file an answer.
On February 22, 1994, the Acting General Counsel
filed a Motion for Default Summary Judgment with the
Board. On February 25, 1994, 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 allega-
tions in the motion are therefore undisputed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Default Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Region, by letter dated January 24, 1994,
notified the Respondent that unless an answer were re-
ceived by February 7, 1994, 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 Acting
General Counsel’s Motion for Default Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with its principal of-
fice and place of business in Troy, Michigan, has been
engaged in the construction industry in providing pav-
ing subcontracting services for general contractors and
real estate developers at various jobsites within the
State of Michigan. During the 12-month period ending
November 17, 1993, the Respondent, in conducting its
business operations, provided within the State of
Michigan subcontracting services valued in excess of
$50,000 to Kirco Realty & Development, a general
contractor and real estate developer which is incor-
porated in Michigan and has facilities located in
Michigan. During the 12-month period ending Novem-
ber 17, 1993, Kirco Realty & Development had gross
revenues in excess of $500,000 and purchased from
points located outside the State of Michigan and
caused to be transported directly to its Michigan facili-
ties and jobsites products, goods, and materials valued
in excess of $50,000. We find that the Respondent is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that Local
324, International Union of Operating Engineers,
AFL–CIO, the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Charging Party, Operating Engineers’ Local 324
Fringe Benefit Funds, is, and has been at all material
times, the agent of the Union for purposes of collect-
ing fringe benefit contributions. All full-time and regu-
lar part-time class I operators, class III operators, and
working foremen employed by the Respondent at or
out of its Troy facility; but excluding all office clerical
employees, guards and supervisors as defined in the
Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
About October 23, 1963, the Respondent, an em-
ployer engaged in the building and construction indus-
try, granted recognition to the Union as the exclusive
collective-bargaining representative of the unit by en-
tering into an agreement with the Union. Since about
October 23, 1963, and at all material times, the Union
has been and is, the limited exclusive collective-bar-
gaining representative of the employees in the unit and
has been recognized as such by the Respondent. Such
recognition is derived from an agreement executed by
the Respondent and the Union about October 23, 1963,
and re-executed by the same parties about December
3, 1968, and renewing itself automatically thereafter,
binding the Respondent to abide by the wage rates,
fringe benefits, working rules and classifications of the
most current collective-bargaining agreement (the con-
tract), executed by the Union and the Michigan Road
Builders Association. The most recent of these con-
tracts is effective by its terms from June 8, 1992, until
June 1, 1995. At all times since about October 23,
1963, based on Section 9(a) of the Act, the Union has
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the absence of any need to determine in this proceeding
whether the parties’ relationship is governed by Sec. 9 or by Sec.
8(f), Member Browning would not reach that issue.
2 The complaint does not affirmatively state that contributions to
the various fringe benefit funds relate to wages, hours, or other terms
and conditions of employment of the unit employees. Moreover, the
record does not indicate whether the advancement promotion fringe
benefit is an industry promotion fund and therefore a permissive
subject of bargaining for which no remedy is warranted. Finger
Lakes Plumbing & Heating Co., 254 NLRB 1399 (1981), and cases
cited there. We leave resolution of this issue to the compliance stage
at which time we will also allow the Respondent to raise this issue
with regard to the other fringe benefit contributions.
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
National 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.’’
been the limited exclusive collective-bargaining rep-
resentative of the unit.1
The contract obligates the Respondent to pay certain
wages to unit employees and to make contributions on
behalf of all unit employees for various fringe benefits,
including:
(a) Health Care
(b) Pension
(c) Retiree Benefit
(d) Vacation
(e) Supplemental Vacation
(f) Apprentice
(g) Advancement Promotion
(h) Local 324 Labor Management
Commencing on or about May 17, 1993, and continu-
ing to date, the Respondent has failed and refused to
make contributions on behalf of all the unit employees
for the various fringe benefits described above.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has been failing and refusing to bargain col-
lectively and in good faith with the exclusive collec-
tive-bargaining representative of its employees (within
the meaning of Section 8(d) of the Act),2 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
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. Specifi-
cally, having found that the Respondent has violated
Section 8(a)(5) and (1) by failing to make contractually
required contributions for various fringe benefits which
are mandatory subjects of bargaining, we shall order
the Respondent to make whole its unit employees by
making all such delinquent contributions, including any
additional amounts due the funds in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979). In addition, the Respondent shall reimburse
unit employees for any expenses ensuing from its fail-
ure to make the required contributions, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to 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 pre-
scribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Harabedian Paving Company, Troy,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to make fringe benefit con-
tributions which are mandatory subjects of bargaining,
as required by the collective-bargaining agreement
with Local 324, International Union of Operating Engi-
neers, AFL–CIO on behalf of the employees in the fol-
lowing unit:
All full-time and regular part-time Class I opera-
tors, Class III operators, and working foremen
employed by the Respondent at or out of its Troy
facility; but excluding all office clerical employ-
ees, guards and supervisors as defined in the Act.
(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 contractually required fringe benefit
contributions which are mandatory subjects of bargain-
ing and which it has failed to make since May 17,
1993, on behalf of the unit employees, remit any other
amounts due the Funds, and make the employees
whole in the manner set forth in the remedy section of
this decision.
(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 amounts due under
the terms of this Order.
(c) Post at its facility in Troy, Michigan, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
1081HARABEDIAN PAVING CO.
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, 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 make contractually
required fringe benefit contributions which are manda-
tory subjects of bargaining, as required by our collec-
tive-bargaining agreement with Local 324, Inter-
national Union of Operating Engineers, AFL–CIO on
behalf of the employees in the following unit:
All full-time and regular part-time Class I opera-
tors, Class III operators, and working foremen
employed by the Employer at or out of our Troy
facility; but excluding all office clerical employ-
ees, guards and supervisors as defined in the Act.
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 contractually required fringe ben-
efit contributions which are mandatory subjects of bar-
gaining and which we have failed to make since May
17, 1993, on behalf of the unit employees, remit any
other amounts due the Funds, and make our employees
whole, with interest.
HARABEDIAN PAVING COMPANY