John Mahoney Construction Co., Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1985

274 N.L.R.B. 109 (N.L.R.B. 1985)

JOHN MAHONEY CONSTRUCTION CO
John Mahoney Construction Company, Inc. and Ex-
cavating and Building Material Chauffeurs &
Helpers Local Union No. 379, a/w Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America. Case 1-CA-
22158
15 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by Excavating and Building
Material Chauffeurs & Helpers Local Union No.
379, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
(the Charging Party), the General Counsel of the
National Labor Relations Board issued a complaint
on 6 August 1984 against John Mahoney Construc-
tion Company, Inc. (the Respondent) alleging that
it has violated Section 8(a)(5) and (1) and Section
2(6) and (7) of the National Labor Relations Act.
Although properly served copies of the charge and
complaint, the Respondent has failed to file an
answer. 1
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 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 to be true and shall
be so found by the Board." The undisputed allega-
tions of the Motion for Summary Judgment dis-
close that on 31 August 1984, having received no
answer to the complaint from the Respondent,
counsel for the General Counsel sent a certified
letter to the Respondent reminding it of the re-
quirements of the Board's Rules and Regulations
cited above, and extending the date for filing an
' On 2 November 1984 counsel for the Respondent filed a motion re-
questing the Board to remand the case to the General Counsel and to
allow the Respondent to file a late answer In support of the motion the
Respondent cited the late retention of counsel on 17 October 1984 and
the possibility that processing the General Counsel's Motion for Summa-
ry Judgment would jeopardize pending settlement discussions As more
fully described below, counsel for the General Counsel notified the Re-
spondent by letters dated 31 August and 10 September 1984, and had at
least one telephone conversation with the Respondent during that time,
in which counsel for the General Counsel stressed to the Respondent the
necessity of filing an answer to the complaint, notwithstanding settlement
discussions then pending The Respondent was put on notice repeatedly
by counsel for the General Counsel of the gravity of its failure to file an
answer yet did not even retain counsel until fully 10 weeks after issuance
of the complaint We find no basis for granting the Respondent's motion
and we deny it
109
answer to 4 September 1984. Thereafter, on 10
September 1984, having still not received an
answer, counsel for the General Counsel sent a
second certified letter to the Respondent recount-
ing a telephone conversation between him and the
Respondent's president John Mahoney, during
which Mahoney informed counsel for the General
Counsel that he did not intend to file an answer be-
cause of pending settlement discussions. During
their telephone conversation and again in the letter
of 10 September, counsel for the General Counsel
reemphasized the necessity for filing an answer
notwithstanding settlement discussions, again
extend the time for filing an answer to 14 Septem-
ber 1984, and stated his intention to file a Motion
for Summary Judgment if no answer was forth-
coming at that time. The letter was clear in ex-
plaining the consequences of the Respondent's con-
tinued refusal to act. On 19 September 1984 coun-
sel for the General Counsel filed his Motion for
Summary Judgment.
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 Judg-
ment. 2
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a corporation with an office
and place of business in Milton, Massachusetts,
where it is engaged as a contractor in the building
and construction industry. Annually, in the course
and conduct of its business, the Respondent per-
forms construction services valued in excess of
$50,000 for customers in the Commonwealth of
Massachusetts, who in turn annually perform serv-
ices valued in excess of $50,000 directly for cus-
tomers located outside the Commonwealth of Mas-
sachusetts and who annually purchase and receive
equipment and supplies valued in excess of $50,000
directly from suppliers located outside the Com-
monwealth of Massachusetts. We find that the Re-
spondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act and that the Charging Party is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
2 In granting the General Counsel's Motion for Summary Judgment,
Chairman Dotson specifically relies on the total failure of the Respondent
to contest either the factual allegations or the legal conclusions of the
General Counsel's complaint Thus, the Chairman regards this proceeding
as being essentially a default judgment which is without precedential
value
274 NLRB No. 24
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
The following employees of the Respondent con-
stitute a unit apropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees
of Respondent engaged in driving trucks or
performing services described in Article II and
Schedule "A" of the 1981-1983 Contract, but
excluding all other employees, guards and su-
pervisors as defined in Section 2(11) of the
Act.
Since 28 October 1981, and at all times material
herein, the Charging Party has been the exclusive
representative for purposes of collective bargaining
for all employees in the unit described above, and
has been, and is now, the exclusive representative
of all the employees with respect to their rates of
pay, wages, hours, and other terms and conditions
of employment within the meaning of Section 9(a)
of the Act.
The Respondent and the Union were parties to a
collective-bargaining agreement in effect for the
period 28 October 1981 to 30 April 1984 covering
the wages, hours, and working conditions of the
employees in the unit described above. The Re-
spondent has failed to continue in full force and
effect the terms and conditions of the collective-
bargaining agreement described above by failing at
all times since March 1983 to remit monthly health
and welfare fund payments on behalf of employees
as required by article XIX of the agreement and
failing at all times since December 1983 to remit
monthly pension payments as required by article
XX of the agreement.
Since about 28 October 1981, by agreements be-
tween the Respondent, the Charging Party, and
employees in the unit described above, the Re-
spondent withheld from paychecks of employees
membership dues the employees owed the Charg-
ing Party. Since that date the Respondent remitted
those dues to the Charging Party on a monthly
basis.
At all times since March 1983 the Respondent
has failed to remit to the Charging Party the mem-
bership dues it continued to deduct from employee
paychecks, as described above, without having af-
forded the Charging Party an opportunity to nego-
tiate about such changes.
Since 13 February 1984 the Charging Party has
requested that the Respondent meet and negotiate
the terms of a new collective-bargaining agree-
ment . At all times since 13 February 1984 the Re-
spondent has refused the Charging Party's requests
to meet and negotiate a new agreement, and has re-
fused to bargain with the Charging Party as the ex-
clusive collective-bargaining representative of unit
employees.
On the basis of the foregoing, we find that the
Respondent has, since about March 1983, refused
to bargain with the Charging Party as the exclusive
representative of the employees in the unit set forth
above, and that by such refusal the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. John Mahoney Construction Company, Inc. is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Excavating and Building Material Chauffeurs
& Helpers Local Union No. 379, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
3. The appropriate collective-bargaining unit is:
All full-time and regular part-time employees
of Respondent engaged in driving trucks or
performing services described in Article II and
Schedule "A" of the 1981-1983 Contract, but
excluding all other employees, guards and su-
pervisors as defined in Section 2(11) of the
Act.
4. Since 28 October 1981 the above-named labor
organization has been and is now the exclusive rep-
resentative of all employees in the appropriate unit
for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing since about March 1983 to remit
monthly health and welfare fund payments pursu-
ant to article XIX of the then effective collective-
bargaining agreement the Respondent has engaged
in and is engaging in unfair labor practices affect-
ing commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
6. By refusing since about December 1983 to
remit monthly pension payments pursuant to article
XX of the then effective collective-bargaining
agreement the Respondent has engaged in and is
engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
7. By refusing since about March 1983 to remit
to Charging Party dues moneys withheld from em-
ployee paychecks pursuant to agreements between
the Respondent, the Charging Party, and unit em-
ployees, the Respondent has engaged in and is en-
gaging in unfair labor practices affecting commerce
JOHN MAHONEY CONSTRUCTION CO
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
8. By refusing at all times since 13 February 1984
to meet with the Charging Party and negotiate the
terms of a new collective-bargaining agreement the
Respondent has engaged in and is engaging 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.
We shall order the Respondent, on request, to
bargain collectively with the Charging Party as the
exclusive representative of all employees in the
unit. The Respondent shall be ordered to remit to
the Charging Party all dues moneys withheld from
employee paychecks, and to remit all health and
welfare fund and pension fund payments due under
the terms of articles XIX and XX of the collective-
bargaining agreement described above, 3 with inter-
est computed as set forth in Florida Steel Corp., 231
NLRB 651 (1977).4
ORDER
The National Labor Relations Board orders that
the Respondent, John Mahoney Construction Com-
pany, Inc., Milton, Massachusetts, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively,
on request, with Excavating and Building Material
Chauffeurs & Helpers Local Union No. 379, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America with
respect to the rates of pay, wages, hours, and other
terms and conditions of employment of the em-
ployees in the appropriate unit.
(b) Failing and refusing to remit health and wel-
fare payments for the period commencing in March
1983 pursuant to article XIX of the agreement.
3 Because the provisions of employee benefit fund agreements are van-
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 in order to satisfy our "make-whole" remedy These addi-
tional 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 Merryweather Optical Co, 240 NLRB 1213 (1979)
4 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
111
(c) Failing and refusing to remit pension plan
payments for the period commencing in December
1983 pursuant to article XX of the agreement.
(d) Failing and refusing to remit to the Union for
the period commencing March 1983 dues moneys
deducted from employee paychecks pursuant to
agreements between the Respondent, the Union,
and unit employees.(e) 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 neces-
sary to effectuate the policies of the Act.
(a) Remit health and welfare payments for the
period commencing March 1983, as required by the
terms of the collective-bargaining agreement then
in effect, with interest as set forth in the remedy
section of this decision.
(b) Remit pension plan payments for the period
commencing December 1983, as required by the
terms of the agreement, with interest as set forth in
the remedy section.
(c) Remit to the Union dues moneys withheld
from employee paychecks for the period commenc-
ing March 1983, pursuant to agreements between
the Respondent, the Union, and unit employees,
with interest as set forth in the remedy section.
(d) 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.
(e) On request, bargain with the Union as the ex-
clusive representative of all employees in the unit
described above with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment and, if an understanding
is reached, embody such understanding in a signed
agreement.
(f) Post at its facility in Milton, Massachusetts,
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, 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
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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ensure that the notices are not altered , defaced, or
covered by any other material.
(g) 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 make health and welfare
payments as required by article XIX of the collec-
tive -bargaining agreement between ourselves and
Excavating and Building Material Chauffeurs &
Helpers Local Union No. 379, a/w International
Brotherhood of Teamsters , Chauffeurs , Warehouse-
men & Helpers of America.
WE WILL NOT refuse to make pension payments
as required by article XX of the agreement.
WE WILL NOT refuse to remit to the Union dues
moneys deducted from our employees ' paychecks
as required by agreement between ourselves, the
Union, and unit employees.
WE WILL NOT refuse to bargain collectively with
the Union as the exclusive bargaining representa-
tive in the unit described below with respect to
wages, hours, and other terms and conditions of
employment:
All full-time and regular part -time employees
of the Employer engaged in driving trucks or
performing services described in Article II and
Schedule "A" of the 1981-1983 Contract, but
excluding all other employees , guards and su-
pervisors as defined in Section 2(11) of the
Act.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL make all health and welfare and pen-
sion payments due, since March 1983 and Decem-
ber 1983 , respectively , including interest.
WE WILL reimburse the Union for all dues
moneys withheld from employee paychecks but not
remitted to the Union since March 1983 , with in-
terest.
WE WILL , on request , bargain with the Union as
the exclusive collective -bargaining representative
of the employees in the unit described above with
respect to wages, hours, and other terms and con-
ditions of employment and, if an understanding is
reached , embody it in a signed agreement.
JOHN MAHONEY CONSTRUCTION
COMPANY, INC.