J & D Masonry, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 2005

344 N.L.R.B. 336 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 32
336
J & D Masonry, Inc., and Pyramid Masonry Con-
struction Co., LLC, Alter Egos and Interna-
tional Union of Bricklayers and Allied Craft-
workers Local 9 Michigan, AFL–CIO. Cases 7–
CA–47407 and 7–CA–47547
February 28, 2005
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 19, 2004, the National Labor Relations
Board issued a Decision and Order1 granting the General
Counsel’s Motion for Default Judgment and finding,
inter alia, that the Respondent had violated Section
8(a)(5) and (1) of the Act by refusing to recognize and
bargain with the Union as the exclusive collective-
bargaining representative of the employees in the unit,
failing to furnish the Union with relevant and necessary
information, and failing to continue in effect the terms
and conditions of employment of the unit employees
contained in its 2003–2005 collective-bargaining agree-
ment with the Union.
However, the Board denied the motion with respect to
the allegation that the Respondent had violated Section
8(a)(5) by failing to make “fringe benefit contributions”
as required by the collective-bargaining agreement.2 The
Board stated that certain types of benefit funds are per-
missive subjects of bargaining for which no remedy
would be warranted, and that there was no indication as
to the nature of the funds involved in this case. The
Board further stated that “[n]othing herein will require a
hearing if, in the event of an appropriate amendment to
the complaint, the Respondent again fails to answer,
thereby admitting evidence that would permit the Board
to find the alleged violation. In such circumstances, the
General Counsel may renew the motion for default
judgment with respect to the amended complaint allega-
tions.”3
Subsequently, on December 9, 2004, the General
Counsel issued an amendment to the consolidated com-
plaint, alleging that since about February 2004 the Re-

1 343 NLRB No. 73.
2 Id., slip op. at 2 fn. 2.
3 Id. Member Liebman dissented, stating that she would have found
that by failing to file an answer the Respondent had admitted all of the
complaint allegations, including that the “fringe benefit contributions”
contained in the parties’ collective-bargaining agreement were manda-
tory subjects of bargaining. She therefore would have granted default
judgment on this issue, and would have ordered the Respondent to
make all the fringe benefit contributions contained in the agreement
unless the Respondent showed in the compliance proceeding that any of
the contributions were to fringe benefit funds considered to be permis-
sive subjects of bargaining.
spondent has failed to continue in effect the terms and
conditions of employment of the unit contained in its
2003–2005 collective-bargaining agreement, including
the following fringe benefit contributions for health and
pension funds: the Michigan BAC health care fund,
Michigan BAC pension fund, local pension, and interna-
tional pension funds. The Respondent again failed to file
an answer.
Accordingly, on January 11, 2005, the General Coun-
sel filed a Motion for Default Judgment with the Board.
On January 18, 2005, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed no response. The allegations in the mo-
tion are therefore undisputed.
Ruling on Motion for Default 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, unless good cause is
shown. In addition, the amendment to consolidated
complaint affirmatively stated that unless an answer was
filed on or before December 23, 2004, all the allegations
in the amendment to consolidated complaint may be
found to be true, pursuant to a motion for default judg-
ment or pursuant to the Board’s earlier Decision and Or-
der in this case.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
Consistent with the allegations in the amendment to
consolidated complaint, which have effectively been
admitted by the Respondent’s failure to file an answer,
we find that since about February 2004 the Respondent
has failed to continue in effect the terms and conditions
of employment of the unit contained in its 2003–2005
collective-bargaining agreement, including the following
fringe benefit contributions for health and pension funds:
the Michigan BAC health care fund, Michigan BAC pen-
sion fund, local pension, and international pension funds.
The subjects set forth above relate to wages, hours and
other terms and conditions of employment of the unit and
are mandatory subjects of bargaining.
The Respondent engaged in the conduct described
above without the Union’s consent.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively with the
exclusive collective-bargaining representative of its em-
J & D MASONRY, INC. 337
ployees, and has thereby engaged in unfair labor prac-
tices 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 cer-
tain 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. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) by, inter alia, failing and refusing since about
February 2004 to make contributions to the Michigan
BAC health care fund, Michigan BAC pension fund,
local pension, and international pension funds as required
by the parties’ 2003–2005 collective-bargaining agree-
ment, we shall order the Respondent to make all contrac-
tually required contributions that have not been made
since that date, including any additional amounts due the
funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 6 (1979).4 The Respondent shall
also reimburse unit employees for any expenses ensuing
from its failure to make the required contributions, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981). Such
amounts are 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 prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that the
Respondent, J & D Masonry, Inc., and Pyramid Masonry
Construction Co., LLC, alter egos, Holt, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Interna-
tional Union of Bricklayers and Allied Craftworkers Lo-
cal 9 Michigan, AFL–CIO as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All employees performing construction work within the
jurisdiction of the International Union of Bricklayers
and Allied Craftworkers, as defined in the Constitution
of the International Union, as well as all other work
normally and traditionally assigned to and performed
by employees represented by the International Union.

4 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
(b) Failing and refusing to furnish the Union with in-
formation that is relevant and necessary to the perform-
ance of its duties as the exclusive bargaining representa-
tive of the unit.
(c) Failing and refusing to continue in effect the terms
and conditions of employment of the unit employees
contained in the 2003–2005 collective-bargaining agree-
ment by, inter alia, failing and refusing to make fringe
benefit contributions to Michigan BAC health care fund,
Michigan BAC pension fund, local pension, and interna-
tional pension funds as required by the agreement.
(d) In any like or related manner interfering with, re-
straining, 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) Recognize and, on request, bargain in good faith
with the Union as the exclusive representative of the unit
employees.
(b) Furnish the Union with the information it requested
on February 27 and March 8, 2004.
(c) Continue in effect the terms and conditions of em-
ployment of the unit employees contained in the 2003–
2005 collective-bargaining agreement.
(d) Make whole the unit employees for any loss of
earnings and other benefits they may have suffered as a
result of its failure, since about February 2004, to con-
tinue in effect the provisions of the collective-bargaining
agreement, including its failure to make the contractu-
ally-required fringe benefit contributions, with interest,
as set forth in the remedy section of this decision.
(e) Make all contractually-required contributions to the
Michigan BAC health care fund, Michigan BAC pension
fund, local pension, and international pension funds that
have not been made since about February 2004, and re-
imburse unit employees for any expenses ensuing from
its failure to make the required contributions, with inter-
est, in the manner set forth in the remedy section of this
decision.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Holt, Michigan, copies of the attached no-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD338
tice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 2004.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to recognize and bargain with In-
ternational Union of Bricklayers and Allied Craftworkers
Local 9 Michigan, AFL–CIO as the exclusive collective-

5 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
bargaining representative of the employees in the follow-
ing appropriate unit:
All employees performing construction work within the
jurisdiction of the International Union of Bricklayers
and Allied Craftworkers, as defined in the Constitution
of the International Union, as well as all other work
normally and traditionally assigned to and performed
by employees represented by the International Union.
WE WILL NOT fail and refuse to furnish the Union with
information that is relevant and necessary to the per-
formance of its duties as the exclusive bargaining repre-
sentative of the unit.
WE WILL NOT fail and refuse continue in effect the
terms and conditions of employment of the unit employ-
ees contained in the 2003–2005 collective-bargaining
agreement by, inter alia, failing to make fringe benefit
contributions to the Michigan BAC health care fund,
Michigan BAC pension fund, local pension, and interna-
tional pension funds.
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 recognize and, on request, bargain in good
faith with the Union as the exclusive representative of
the unit employees.
WE WILL furnish the Union with the information it re-
quested on February 27 and March 8, 2004.
WE WILL continue in effect the terms and conditions of
employment of the unit employees contained in the
2003–2005 collective-bargaining agreement.
WE WILL make whole our unit employees for any loss
of earnings and other benefits they may have suffered as
a result of our failure, since about February 2004, to con-
tinue in effect the provisions of the collective-bargaining
agreement, including our failure to make the contractu-
ally required fringe benefit payments, with interest.
WE WILL make all contractually-required contributions
to the Michigan BAC health care fund, Michigan BAC
pension fund, local pension, and international pension
funds that have not been made since about February
2004, and reimburse unit employees for any expenses
ensuing from our failure to make the required contribu-
tions, with interest.
J & D MASONRY, INC., AND PYRAMID MASONRY
CONSTRUCTION CO., LLC, ALTER EGOS