J.C.R. Construction, Inc.

National Labor Relations Board - Board Decisions

May 18, 1990

298 N.L.R.B. 597 (N.L.R.B. 1990)

J.C.R. CONSTRUCTION
J.C.R. Construction, Inc. and William R. Zimmer-
man and Micheal J . Pascarelli. Cases 34-CA-
4366 and 34-CA-4370
May 18, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Upon a charge filed by William R. Zimmerman,
an individual, on June 29, 1989, and a charge filed
by Michael J. Pascarelli, an individual, on July 6,
1989, the General Counsel of the National Labor
Relations Board issued a consolidated complaint on
August 28, 1989, against J.C.R. Construction, Inc.,
the Respondent, alleging that it has violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations
Act. Although properly served copies of the
charges and complaint, the Respondent has failed
to file an answer.
On December 19, 1989, the General Counsel
filed a Motion for Summary Judgment, with exhib-
its attached. On January 4, 1990, 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
undisputed.
The National Labor Relations Board has delegat-
ed 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 Regula-
tions 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. The consolidated com-
plaint states that unless an answer is filed within 14
days of service, "all of the allegations in the con-
solidated complaint shall be deemed to be admitted
to be true and shall be so found by the Board."
Further, the undisputed allegations in the Motion
for Summary Judgment disclose that counsel for
the General Counsel, by certified letter dated No-
vember 6, 1989, notified the Respondent that unless
an answer was received by November 13, 1989, 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 fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
597
The Respondent, a Connecticut corporation with
an office and place of business in West Haven,
Connecticut, has been engaged as a general con-
tractor in the building and construction industry,
constructing residential and commercial facilities.
During the 12-month period ending July 31, 1989,
the Respondent, in the course and conduct of its
business operations, purchased and received at its
State of Connecticut jobsites products, goods, and
materials valued in excess of $50,000 from other
enterprises located within the State of Connecticut
that had received the products, goods, and materi-
als directly from points outside the State of Con-
necticut. We find that the Respondent is an em-
ployer 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 Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent, as
described in article II of the collective-bargaining
agreements referred to below, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All carpenters employed by the Employer, ex-
cluding all other employees employed by the
Employer such as watchmen, guards, manage-
ment employees, clerical employees, engineers,
draftsmen, and supervisory personnel as de-
fined in the Act.
On October 6, 1986, the Respondent entered into
an acceptance agreement adopting the collective-
bargaining agreement between the Union and the
Associated General Contractors of Connecticut
(AGC), and agreeing to be bound to such future
agreements between the Union and the AGC
unless timely notice was given to the contrary.
Pursuant to this agreement, the Respondent grant-
ed recognition to the Union as the exclusive collec-
tive-bargaining representative of the unit without
regard to whether the majority status of the Union
had ever been established under the provisions of
Section 9(a) of the Act. Such recognition has been
included in the successor collective-bargaining
agreement between the Union and the AGC,
which is effective from April 5, 1989, to March 31,
1991. At all material times since October 6, 1986,
by virtue of Section 8(f), the Union has been the
298 NLRB No. 79
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
limited exclusive collective-bargaining representa-
tive of the unit.'
Since on or about December 29, 1988, the Re-
spondent has failed to continue in full force and
effect all the terms and conditions of the agree-
ments described above by failing to make the con-
tractually required contributions to the Connecticut
Carpenters Health, Pension and Annuity Funds.
The terms and conditions of the agreements that
the Respondent failed to continue in full force and
effect are terms and conditions of employment of
employees in the above-described unit, and are
mandatory subjects of bargaining. The Respondent
engaged in this conduct without prior notice to the
Union and without having afforded the Union an
opportunity to bargain as the limited exclusive rep-
resentative of the Respondent's employees in the
unit regarding such conduct and its effects.
We find that by these actions the Respondent has
failed and refused to bargain collectively and in
good faith with the Union, and has thereby en-
gaged in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing, since on or about December 29, 1988,
to continue in full force and effect all the terms
and conditions of the original 1986 collective-bar-
gaining agreement and the successor collective-bar-
gaining agreement effective April 5, 1989, through
March 31, 1991, and by failing to make the contri-
butions to the Connecticut Carpenters Health, Pen-
sion and Annuity Funds, as provided in the collec-
tive-bargaining agreements and as required by the
Respondent's October 6, 1986 acceptance agree-
ment, the Respondent 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 designed to effectuate the policies of the
Act.
i To the extent that complaint par. 11 alleges that the Union is the ex-
clusive representative of the unit employees by virtue of Sec. 9 (a), it is
clear, based on complaint par 10, which alleges that the Respondent
granted recognition to the Union without regard to majority status, that
the Respondent and the Union have established an 8(f) relationship.
Under the principles of John Deklewa & Sons, 282 NLRB 1375 (1987),
enfd sub nom Iron Workers Local 13 v. NLRB, 843 F.2d 770 (3d Cir.
1988), an 8(1) signatory union does not acquire full 9(a) status based
solely on an employer's adoption of an 8(f) agreement. Accordingly, we
find that the Union is the limited exclusive representative of the Respond-
ent's unit employees. Id at 1386-1387.
We shall order the Respondent to make whole
its unit employees by paying Connecticut Carpen-
ters Health, Pension and Annuity Fund contribu-
tions to the funds, as provided in the collective-bar-
gaining agreements, that have not been paid and
that would have been paid absent the Respondent's
unilateral discontinuance of the payments.2 The
Respondent shall also reimburse its employees for
any expenses ensuing from its failure to make such
contributions, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem.
661 F.2d 940 (9th Cir. 1981), with interest to be
computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that
the Respondent, J.C.R. Construction, Inc., West
Haven, Connecticut, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Local
24, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO as the limited exclusive bar-
gaining representative of the employees in the ap-
propriate unit set forth below, by failing to contin-
ue in full force and effect all the terms and condi-
tions of the collective-bargaining agreements by
failing to make contributions to the Connecticut
Carpenters Health, Pension and Annuity Funds, as
provided in the collective-bargaining agreements
and as required by the Respondent's October 6,
1986 acceptance agreement or any extension to
which it may be bound.
(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) Make whole the unit employees by making
contributions to the Connecticut Carpenters
Health, Pension and Annuity Funds, as provided in
the collective-bargaining agreements and as re-
quired by the Respondent's 1986 acceptance agree-
2 Because the provisions of employee benefit fund agreements are vari-
able and complex , the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments. We leave to the compliance stage the question
of whether the Respondent must pay any additional amounts into the
benefit funds to satisfy our "make-whole " remedy These additional
amounts may be determined , depending on the circumstances of each
case, by reference to provisions in the documents governing the funds at
issue and, where there are no governing provisions, to evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds withheld,
additional administrative costs, etc., but not collateral losses. Merry-
weather Optical Co., 240 NLRB 1213 (1979).
J.C.R. CONSTRUCTION
ment or any extension to which it may be bound,
that have not been paid and that would have been
paid absent the Respondent's unilateral discontinu-
ance of the payments, and by reimbursing the unit
employees for any expenses ensuing from the Re-
spondent's unlawful failure to make such payments,
in the manner set forth in the remedy section of
this decision. The appropriate unit is:
All carpenters employed by the Employer, ex-
cluding all other employees employed by the
Employer such as watchmen, guards, manage-
ment employees, clerical employees, engineers,
draftsmen, and supervisory personnel as de-
fined in the Act.
(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 the
Order.
(c) Post at its facility in West Haven, Connecti-
cut, copies of the attached notice marked "Appen-
dix."3 Copies of the notice, on forms provided by
the Regional Director for ][legion 34, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly, upon receipt 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 Respondent
to ensure that the notices are not altered, 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 Respondent has taken to comply.
8 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
599
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 24, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO as the limited exclu-
sive bargaining representative of the employees in
the appropriate unit set forth below, by failing to
continue in full force and effect all the terms and
conditions of the collective-bargaining agreements
by failing to make contributions to the Connecticut
Carpenters Health, Pension and Annuity Funds, as
provided in our collective-bargaining agreements
and as required by our October 6, 1986 acceptance
agreement or any extension to which we may be
bound.
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 make whole our unit employees by
making contributions to the Connecticut Carpen-
ters Health, Pension and Annuity Funds, as provid-
ed in the collective-bargaining agreements and as
required by our 1986 acceptance agreement or any
extension to which we may be bound, that have
not been paid, and by reimbursing our unit employ-
ees for any expenses ensuing from our unlawful
failure to make such payments, with interest. The
appropriate unit is:
All carpenters employed by the Employer, ex-
cluding all other employees employed by the
Employer such as watchmen, guards, manage-
ment employees, clerical employees, engineers,
draftsmen, and supervisory personnel as de-
fined in the Act.
J.C.R. CONSTRUCTION, INC.